Ashton v. Ashton

• Court: Idaho Supreme Court
• Writing for the Court: HOLDEN, C. J.
• Citation: Ashton v. Ashton, 59 Idaho 408, 83 P.2d 991 (Idaho 1938)
• Decision Date: 03 October 1938
• Docket Number: 6555
• Parties: NEMA ASHTON, Respondent, v. ALAN W. ASHTON, Appellant

83 P.2d 991

59 Idaho 408

NEMA ASHTON, Respondent, v. ALAN W. ASHTON, Appellant

No. 6555

Supreme Court of Idaho

October 3, 1938

DIVORCE-MODIFICATION OF DECREE-CHANGE OF CIRCUMSTANCES-DISCRETION OF TRIAL COURT.

1. Where a divorce is granted for the offense of the husband and an award is made for the support of the wife and minor child modification of decree, on application, upon ground of material and permanent change in circumstances of the parties since the entry of the decree is within the court's discretion. (I. C. A., sec. 31-706.)

2. The objection that divorced husband's application for modification of alimony provisions of decree should not be heard and determined because he was in arrears in payment of alimony could not be urged on appeal for the first time. (I C. A., sec. 31-706.)

3. Where at the time of filing of application for modification of divorce decree wife was regularly employed at a salary of $110 per month and was earning approximately $6 per month by giving music lessons and husband was receiving salary of $230 per month, decree requiring payment of $95 per month to wife would be modified so as to require husband to pay $35 monthly until balance of purchase price of certain residence property was paid and in addition $35 monthly for the support of minor child. (I. C. A., sec. 31-706.)

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Jay L. Downing, Judge.

Application to modify decree of divorce. From judgment denying application, defendant appeals. Reversed and remanded with directions.

Reversed and remanded with directions. Costs awarded to appellant.

Roy L Black, for Appellant.

The court will modify such a decree on proper application where there are substantial and material changes in the circumstances of the parties justifying such modification. ( Simpson v. Simpson, 51 Idaho 99, 4 P.2d 345; Cornelison v. Cornelison, 53 Idaho 266, 23 P.2d 252; Humbird v. Humbird, 42 Idaho 29, 243 P. 827; Newton v. Newton, 145 Wis. 261, 130 N.W. 105.)

Jones, Pomeroy & Jones, for Respondent.

Authority of court to modify divorce decree can be exercised only on showing of material and permanent change in parties' conditions and circumstances. (Simpson v. Simpson, 51 Idaho 99, 4 P.2d 345.)

Party seeking modification of divorce decree has burden of proving change of conditions and circumstances. (Simpson v. Simpson, supra.)

Modification of order for support of minor child awarded wife, held generally within the trial court's discretion. ( Fisher v. Fisher, 155 Wash. 272, 283 P. 1096.)

HOLDEN, C. J. Ailshie, Budge and Givens, JJ., concur. MORGAN, J., Dissenting.

OPINION

HOLDEN, C. J.

Nema Ashton, a music teacher, and Alan W. Ashton, an accountant, were married in March, 1922. About fourteen years later the parties became involved in domestic difficulties, as a result of which, and in contemplation of the filing of a suit for divorce by Nema Ashton, a written agreement was entered into whereby, among other things, it was agreed, subject to later approval by the court, as follows: That respondent be awarded certain residence property owned by the parties, located in Pocatello, Idaho, purchased under the terms of an executory contract, upon which, at the time of the entry of the decree of divorce, there was due $ 1,682.93; that appellant pay respondent the sum of $ 95 monthly as an allowance to be used for the support of respondent and a minor child; and that out of the said sum of $ 95, respondent was required to pay the sum of $ 35 monthly until the balance of said purchase price was paid in full.

Following the making of said written agreement, respondent filed a complaint for divorce. The complaint pleaded the agreement theretofore made, as above stated, and also, in effect, charged cruel and inhuman treatment. Thereafter the case was tried and on the 8th of February, 1936, a decree of divorce was rendered and entered on the complaint of the wife. The decree, following the terms and conditions of the contract, awarded a monthly allowance to respondent in the sum of $ 95. It required, also pursuant to the terms of the contract, that respondent pay the sum of $ 35 monthly in satisfaction of the balance due on the purchase price of the residence. The decree also awarded the residence to respondent. It did not award any specific amount as alimony for the support of respondent nor did it award any specific amount for the support of the minor child.

October 11, 1937, appellant filed an application for modification of the decree, supported by his affidavit. On the same day, an order to show cause was issued and served upon respondent. October 21, 1937, respondent filed an affidavit in opposition to that of appellant and appellant filed a reply affidavit. Thereupon the application was heard. Both appellant and respondent were fully cross-examined under the statute in relation to the various matters covered by their respective affidavits. Dr. Lyons was called also and examined upon matters not deemed material to a decision of the question presented on this appeal. January 11, 1938, the trial court entered judgment denying appellant's application for modification, from which he appeals.

The application for modification of the decree was made upon the ground that there had been a material and permanent change in the conditions and circumstances of the parties since the entry of the decree. Where a divorce is granted for the offense of the husband and an award is made for the support of the wife and minor child or children, as the case may be, and thereafter an application is made under the provisions of section 31-706, I. C. A., for a modification of the decree awarding support, upon the ground of a material and permanent change in the circumstances of the parties since the entry of the decree, the court will, in the exercise of sound, judicial discretion, make such modification of the decree as justice and the changed circumstances of the parties demand. (Humbird v. Humbird, 42 Idaho 29, 243 P. 827; Simpson v. Simpson, 51 Idaho 99, 4 P.2d 345.)

The record shows that about a year before the entry of the decree in the case at bar, r...