Clark v. Clark

• Decision Date: 17 December 1923
• Docket Number: 23701
• Citation: 133 Miss. 744,98 So. 157
• Court: Mississippi Supreme Court
• Parties: CLARK v. CLARK

98 So. 157

133 Miss. 744

CLARK v. CLARK

No. 23701

Supreme Court of Mississippi

December 17, 1923

Division A

(Division A.) January 1, 1920

1 DIVORCE. Authority of chancellor to change alimony not increased by provision in decree.

Under section 1415, Hemingway's Code (section 1673, Code of 1906), empowering the court to change alimony, where the circumstances of the parties have changed, a provision in the original decree retaining right to further change alimony is no more than the authority granted by the statute, and comes under it.

2 DIVORCE. Court without authority to change alimony unless circumstances changed.

Under section 1415, Hemingway's Code (section 1673, Code of 1906), the court has no authority to change alimony, unless the circumstances of the parties have changed.

HON. G E. WILLIAMS, Chancellor.

APPEAL from chancery court, of Coahoma county, HON. G. E. WILLIAMS, Chancellor.

Suit by Guy P. Clark against Mrs. Pearl Miles Clark. From a decree for plaintiff, defendant appeals. Reversed, and judgment rendered.

Decree reversed.

F. H Montgomery, for appellant.

Counsel for the defendant contended on the trial below, that because of the provision, "Until the court shall see fit to enter such other, further, and more general orders, in the matter of alimony as to the court may seem meet and proper, and the question of alimony for further orders of the court is hereby expressly retained," the decree so far as the alimony feature is concerned was temporary or interlocutory, and not final.

We contend that the decree was final, and that the provision quoted reserved no right or power to change the same, which the statute law at the time did not invest the court with, in such cases.

Section 1415, Hemingway's Code (section 1673, Code 1906) provides in respect to an award of alimony to be paid in periodical installments: "And the court may afterwards, on petition change the decree, and make from time to time such new decrees as the case may require."

The provision in the decree referred to, was but a declaration of the statute law on the subject. It reserved no power or authority in the court to modify the decree at any time in the future, which the statute law did not confer upon it. In view of our statute law, any award of alimony which is to be paid in periodical installments, is always subject to reconsideration by the court, upon petition alleging such a change in circumstances since the decree was entered, as would render it unfair and unjust.

Nevertheless, the decree was final and could only be reopened in the method pointed out by statute. All decrees are final which terminate the litigation between the parties on the merits, and leave nothing to be done but to enforce by execution what has been determined.

Execution could properly have been issued to enforce payment of the installments to be paid in the future, as they severally become due as at law. Likewise, either party to the suit might have prosecuted an appeal therefrom to the supreme court. These tests constitute unerring proof of the finality of the decree as rendered. Sistare v. Sistare, 54 L.Ed. (U.S.) 905; Guess v. Smith, 100 Miss. 461.

This cause was not continued on the issue as to the amount of alimony to be allowed, but a definite fixed sum was allowed, payable in monthly installments. The decree was final and could be enforced as written until and unless reopened, and modified on subsequent petition, which could be done only in the manner pointed out by the statute.

The decree was res adjudicata as to all facts existing at the time of the rendition thereof. 1 R. C. L., page 940, section 87 and authorities cited. Cole v. Cole, 142 Ill. 19, 34 A. S. R. 56.

In the written opinion of the court on the decree now appealed from appearing at page 86 of the record, it will be noticed that the chancellor makes a collateral assault upon the verity of his own decree previously entered, by stating that no testimony was taken on the subject, and that the same was entered by consent. Whereas, in the solemn decree of the court we find a recitation of fact that the court heard testimony, was fully advised in the premises, and found that the complainant was entitled to recover alimony. The written opinion of the court plainly contradicts the terms of the decree of the court entered on the 27th day of October, 1921.

The decree of the court was signed by the same chancellor who wrote the opinion referred to. There is no way to reconcile the statements of fact contained in the decree, and those contained in the opinion of the chancellor. We express no opinion as to which contains a correct statement of facts; but do insist as a matter of law, the decree must prevail. It is not permissible for a court to enter a decree and subsequently explain away the legal effect of the same by writing an opinion on an issue raised by subsequent pleadings in the case. A decree cannot be collaterally attacked in this manner even by the chancellor who signed the decree. If the decree did not state the facts, it should have done so, and is conclusively presumed to have done so, as against any collateral attack thereon. The original decree entered in the case undertook to, and did adjudicate issues involving most sacred personal relations and valuable property rights. Any statement of facts subsequently made by the chancellor on issues raised by subsequent pleadings in the case does not impair or modify the legal effect of the decree previously rendered to any extent.

While an award of alimony to be paid in periodical installments may be reopened upon petition setting up facts which would warrant the court in changing or modifying its terms, the rule is that upon the trial of the issue joined upon the petition to reopen the case and to modify the decree in respect to the alimony, the court is limited in its investigations to circumstances arising after the rendition of the decree making the award, and is precluded from an investigation of any facts which existed at the time the original decree was entered.

This is the general rule and has been expressly adopted by this court in the case, Mrs. Myrtle D. Williams v. G. Edw. Williams, 127 Miss. 627 (635), in which Chief Justice SMITH, speaking for the court said: "This statute (section 1415, Hemingway's Code--Section 1673, Code 1906), 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 the former decree in accordance with the after-arising circumstances of the parties." Guess v. Smith, 100 Miss. 461; Sistare v. Sistare, 54 L.Ed. (U.S.) 905; McGregor v. McGregor, 52 Colo. 292, 122 P. 390.

In view of the fact that the testimony was never excluded, however, we might safely rest this question upon the assumption that the evidence not having been excluded, had some influence upon the court in rendering his judgment: Banks v. Banks, 118 Miss. 788.

However, we are relieved of the necessity of resorting to any assumption in this regard, inasmuch as the chancellor reduces his opinion to writing, in which written opinion the court says: "The complainant has considerable means of her own, and is entirely able to support herself."

In other words the opinion of the court was, notwithstanding the husband by his own gross misconduct and violation of his marriage obligations compelled his wife to sue him for divorce, and obtained a divorce, if his wife is able by hook or crook to support herself, the husband is absolved from all responsibility to her. This has never been the law in any jurisdiction.

The testimony as to the wife's financial condition was manifestly improperly permitted to go into the record, and for this error the case should be reversed.

A divorce was granted in this case to the wife on the ground of adultery of her husband. No charge of any kind was preferred by the husband against the wife. After a married life continuing over a period of twenty-four and half years, the complainant was compelled to sue for divorce because of the adultery of the husband. The conduct of the wife was unexceptionable, and the sole cause of the divorce was the wrong of the husband.

A decree for seventy-five dollars per month as alimony to the wife was thought to be just and reasonable at the time the divorce was granted. Indeed, while the decree does not say so, there is some evidence to the effect that this amount was consented to by the defendant to be fair and just. The issue involved at this time grows out of an application by the defendant to modify the decree and to disallow any alimony whatsoever.

The rule is, that where alimony has once been settled an application to change or modify the decree awarding same should be subjected to a thorough investigation. Bannon v. Bannon, 63 A. D. 171; 1 R. C. L. 948, sec. 94.

Cook, Roberson, Yerger & Cook, for appellee.

We are thoroughly familiar with the cases from our own court in which the court has held that the power conferred upon the court by statute is one to change or modify a decree for alimony in accordance with after-arising circumstances of the parties. Such cases are: Guess v. Smith, 100 Miss. 461; Williams v. Williams, 127 Miss. 627, and others.

These cases can have no bearing upon this feature of this case because all of them involve the construction of the statute, section 1415 of Hemingway's Code. We are now discussing the construction of a decree of the court. It appears from the evidence that the decree above mentioned was entered with the understanding that the same should be temporary only, and that the question of alimony should be finally decided at the April Term, 1922, of the chancery court of Coahoma county,...