90 So. 330 | Miss. | 1921
delivered the opinion of the court.
The parties hereto were formerly husband and wife, but were divorced by a decree of the court below rendered on the 22d day of December, 1919, in which decree alimony was awarded to the appellant by the following provision thereof:
“And complainant and defendant having consented and agreed in open court that the defendant shall pay the complainant as alimony in lieu of all other alimony and attorney’s fees the sum of seventy-five dollars per month, payable on the first day of each month, commencing on January 1, 1920; and the court being of the opinion from the evidence that the said sum is reasonable and proper, it is therefore ordered, adjudged and decreed that said complainant, Myrtle D. Williams, be paid by the defendant, G. E. Williams, said sum of seventy-five dollars per month, beginning on the first day of January, 1920, and a like sum on the first day of each month thereafter unless the said complainant should remarry.”
On January 6, 1921, the appellant filed a petition in the court below setting forth that the appellee had made only three of the monthly payments provided for in the decree of divorce, and prayed that he be cited to appear and show cause why he should not be held in contempt of the court for his failure to comply Avith the requirements of its decree. Thereafter the appellee filed a petition setting forth “that he had never read the. original decree entered in this cause until he Avas cited to appear ... to show cause Avhy he should not be adjudged in contempt of court for failure to pay the alimony provided in the said decree,” and “that the agreement between himself and the complainant was that the complainant expressed a desire to take
This petition was answered by the appellant, and the cause was tried by a special chancellor, who, after hearing the evidence, rendered a decree reciting:
“That the minds of the parties never met and mutually concurred in an agreement for the fixing of continuing permanent alimony, nor in the amount of such alimony, but that said agreement was that the defendant should pay seventy-five dollars per month to the complainant for an indeterminate period covered by the time reasonably re: quired for the complainant to complete a course of business instruction extending over a period of some months, and the court finds that a reasonable time for the completion of said course is six months, and therefore the court finds that the limit of the real liability of the defendant to the complainant at the time the decree was entered was and is for an allowance of six months at the outside of seventy-five dollars per month, or a total liability of four hundred fifty dollars, of which sum defendant has paid complainant two hundred twenty dollars, leaving a balance of two hundred twenty-five dollars.
“It is therefore ordered, adjudged, and decreed that the said defendant, G. Edw. Williams, pay to the said Mrs. Myrtle D. Williams or her solicitors of record, within thirty days from the entry of this decree, the said sum of two*635 hundred twenty-five dollars together with interest thereon at the rate of six per cent, per annum from June 1, 1920, as and for alimony found by the court to be due the said complainant by the said .defendant, and that the defendant pay all costs of this proceeding.
“It is further ordered, adjudged, and decreed that the decree heretofore entered in this cause on the 22d day of December, 1919, and recorded at page 92 of Minute Book C of the minutes of this court at Cleveland, Mississippi, being the decree for divorce between the parties hereto, be reformed in so far as the provisions for alimony therein contained is concerned in accordance with the finding of the court as above set out, and that the defendant, when he shall have paid the said sum of two hundred twenty-five dollars, with the interest and costs, shall be free from all further liability on account of said alimony.”
Counsel for the appellee do not and could not successfully contend that the decree is authorized by any of the general powers of the court below, their contention being that it is authorized by section 1673, Code of 1906 (section 1415,- Hemingway’s Code), which provides:
“When a divorce shall be decreed from the bonds of matrimony, the court may, in its discretion, having regard to the circumstances of the parties and the nature of the case, as may seem equitable and just, make all orders . . . touching the maintenance and alimony of the wife, or ai allowance to be made to her, and may, if need be, reqr ; sureties for the payment of the sum so allowed; ar e court may afterward, on petition, change the deer .nd make from time to time such new decrees as the ca, lay require.”
1 s statute does not authorize the court to set aside a decree rendered at a former term and render another in lieu thereof, but only to change or modify the terms of a former decree in accordance with the after-arising circumstances of the parties. Guess v. Smith, 100 Miss. 461, 56 So. 166, Ann. Cas. 1914A, 300; Sistare v. Sistare, 218 U. S. 1, Sup. Ct. 682, 54 L. Ed. 905, 28 L. R. A. (N. S.) 1068,
Reversed and remanded.