Aseltine v. Second Judicial Dist. Court in and for Washoe County, Department No. 1
| Decision Date | 03 December 1936 |
| Docket Number | 3168. |
| Citation | 62 P.2d 701,57 Nev. 269 |
| Parties | ASELTINE v. SECOND JUDICIAL DIST. COURT IN AND FOR WASHOE COUNTY, DEPARTMENT NO. 1 et al. |
| Court | Nevada Supreme Court |
Original proceeding by Alverton H. Aseltine for a writ of mandamus directed to the Second Judicial District Court, in and for Washoe County, Department No. 1, the Honorable Thomas F Moran, Judge.
Peremptory writ issued.
C. R Pugh, of Reno, for petitioner.
Ayres Gardiner & Pike, of Reno, amici curiæ, for respondents.
This is an original proceeding in mandamus growing out of the following situation:
In September, 1930, Anna Mae Aseltine, hereinafter referred to as the plaintiff, brought a suit for a divorce against Alverton H. Aseltine, the petitioner herein, in the above-named respondent court, the complaint alleging as a ground for divorce extreme cruelty. An answer was filed to the complaint, denying these allegations. Upon the conclusion of the taking of evidence in said suit, the court entered a decree in favor of the plaintiff, dissolving the bonds of matrimony. Prior to the entry of the said decree, the parties to said suit had entered into an agreement as to the disposition of certain life insurance policies and other property. In said agreement it was stipulated that petitioner should deposit in a bank to the credit of the plaintiff, on the first of each month, the sum of $225, so long as his salary should remain at the then existing figure. It was further agreed that the agreement mentioned should be embodied in and be made a part of any judgment or decree of divorce that might thereafter be entered. Said agreement further provides: "In the event the salary of the husband is reduced the allowance of the wife will then be reduced in the same ratio as the salary has been reduced below the present salary."
Thereafter the respondent court entered its decree, which reads in part as follows: "It is further ordered, adjudged and decreed that the property settlement agreement heretofore entered into between the parties hereto, a copy of which agreement is hereto attached, is hereby approved and made a part of this Judgment and Decree and the Court does hereby order that said Defendant pay to Plaintiff the sum of Two Hundred Twenty-five ($225.00) Dollars per month pursuant to the terms of said agreement and as therein provided."
The petition herein, in addition to alleging the foregoing facts, further shows that, upon notice duly given, the petitioner moved the respondent court to modify the judgment and decree, hereinabove mentioned, upon the ground, among others, that he had sustained severe financial losses, and has sustained a reduction of over 20 per cent. in his salary since the rendition of the judgment and decree herein.
The plaintiff objected to the granting of the motion, upon the ground, among others, that the court was without jurisdiction to modify the judgment and decree in question. The court sustained this contention upon two theories: First, because the decree sought to be modified does not reserve to the court any power to modify, and, second, because more than six months had elapsed between the entry of the decree and the date of the application to modify.
We are of the opinion that the respondent court was in error as to both views.
It is seen from the quotation from the decree, above set forth, that the agreement entered into by the plaintiff and the petitioner was, by reference, expressly made a part of the judgment and decree. This being clear, the next question is, What interpretation should be placed upon the provision in the decree providing that, in the event the salary of the petitioner is reduced, the allowance to the plaintiff will be reduced in the same ratio? In other words, was it the intention that the judgment and decree might be modified in accordance with the provision relative to a reduction of the allowance to the plaintiff?
The correct rule is stated in 34 C.J. p. 501, 502, as follows ...
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