Canada v. Canada

• Decision Date: 03 February 1942
• Docket Number: 30323.
• Citation: 121 P.2d 989,190 Okla. 203,1942 OK 45
• Parties: CANADA v. CANADA.
• Court: Oklahoma Supreme Court

121 P.2d 989

190 Okla. 203, 1942 OK 45

CANADA v. CANADA.

No. 30323.

Supreme Court of Oklahoma

February 3, 1942

Syllabus by the Court.

1. Where alimony has been allowed to a wife in a decree of divorce in a fixed and definite amount and as a part of the permanent judgment of the court, the court has no power on subsequent application showing circumstances thereafter arising, to increase or diminish the allowance given in the original judgment.

2. An attempt to reduce the regular monthly payments in a judgment for alimony from the sum of $30 per month to the sum of $10 per month is an attempt to diminish the allowance given in the original judgment.

Appeal from District Court, Lincoln County; J. Knox Byrum, Judge.

Action for divorce by Leonard Irvin Canada against Effie Elizabeth Canada. From an order and judgment modifying a judgment awarding defendant alimony by reducing monthly payments thereof, defendant appeals.

Reversed and remanded with directions.

H. M Jarrett, of Chandler, for plaintiff in error.

M. A Cox, of Chandler, for defendant in error.

PER CURIAM.

This is an appeal from an order modifying a judgment in a divorce proceeding. On the 8th day of September, 1939, Leonard Irvin Canada obtained a divorce from Effie Canada. Therein the court entered a judgment for the defendant for alimony in the sum of $4,600, payable $40 per month until the youngest daughter became 18 years of age and $30 per month thereafter. On the 26th day of December, 1939, plaintiff applied for an order modifying the decree, and on the 3rd day of May, 1940 the court reduced the judgment to $3,600 and ordered payment of $30 per month. Thereafter on the 18th day of November 1940, plaintiff filed a further application for modification and on the 10th day of January, 1941, the court ordered the payments reduced to $10 per month until $3,600 had been paid.

The defendant appealed. Plaintiff has filed a motion to dismiss which is without merit. The motion is predicated upon the assumption that this is an attempt by one proceeding to vacate, modify and reverse two judgments. The final order from which the appeal is taken was entered on January 10, 1941. The defendant saved exceptions thereto and therefore has a right to appeal therefrom. The motion to dismiss is denied.

The evidence on the proceedings is not brought to this court. The sole question presented, aside from the motion to dismiss, is that the court was without authority to change the prior order.

We need not notice the action on the original judgment taken on the 8th day of September, 1939, further than to state that within the term the plaintiff filed a motion to modify the judgment and we think that the defendant has overlooked the case of Nichols v. Bonaparte, 171 Okl. 234, 42 P.2d 866, in which it is announced that a court may, within its discretion, vacate a judgment after term under the same rule and with the same discretion that is allowed to be exercised where the application is filed within the term. The order of May 3, 1940, was not void therefore since the judgment was taken in September, 1939, and could be changed at the discretion of the court since the application was filed in December, 1939.

This leaves for our sole consideration the order of January 10, 1941. This order was made after the term which ended in July, 1940, and the application likewise was filed after the term, to-wit November 18, 1940.

The only cases cited by the plaintiff in support of the right to change and modify the decree are Taliaferro v. Reirdon, 186 Okl. 607, 99 P.2d 500; Banta v. Hestand, 181 Okl. 551, 75 P.2d 415; Cimarron Valley Pipe Line Co. v. Holmes, 182 Okl. 450, 78 P.2d 403; Hutchins v. Richardson, 100 Okl. 80, 227 P. 432, and are in support of his assertion that on appeal the party will not be permitted to secure a reversal of a judgment on error which she has invited or acquiesced in. Although this might be true as to the judgment of May 3, 1940, it will not dispose of the right to take an appeal from the order of January 10, 1941. The defendant did not acquiesce therein or consent to its being taken.

Reference is made to the following cases: Dutton v. Dutton, 97 Okl. 234, 223 P. 149; Alcorn v. Alcorn, 187 Okl....