Cody v. Cody

• Decision Date: 26 January 1916
• Docket Number: 2676
• Citation: 154 P. 952,47 Utah 456
• Court: Utah Supreme Court
• Parties: CODY v. CODY

154 P. 952

47 Utah 456

CODY v. CODY

No. 2676

Supreme Court of Utah

January 26, 1916

Appeal from District Court, Third District; Hon. Geo. G. Armstrong Judge.

Action by Belle Cody against J. J. Cody.

From orders dismissing a motion for new trial and denying an increase of alimony, plaintiff appeals.

First appeal dismissed and order AFFIRMED as to second appeal.

S. P Armstrong for appellant.

J. W McKinney for respondent.

FRICK J., STRAUP, C. J. McCARTY, J., concurring.

OPINION

FRICK, J.

This proceeding was originally commenced in the district court of Salt Lake County by the plaintiff, Belle Cody, against her husband J. J. Cody, the defendant, to recover judgment for separate maintenance.While the action was pending the plaintiff amended her complaint and prayed for a divorce.The defendant contested plaintiff's prayer for maintenance, as well as for divorce.Permanent alimony was prayed for in the complaint.On the 6th day of November, 1913, the district court aforesaid entered an interlocutory decree for divorce in favor of the plaintiff, under our statute as amended by Laws of Utah 1909, c. 109.In that decree, in addition to being granted a divorce, the plaintiff was also awarded the custody of her infant, a boy of six years of age, and the defendant was required to deposit with the clerk of said court the sum of twenty dollars a month, which, as stated in the decree, was allowed "as permanent alimony, the same to be used by the plaintiff, or such portion thereof as shall be necessary, for the care and support of said minor child."On the application of the defendant that portion of the decree quoted above was, on the 20th day of December, 1913, amended so as to make the decree conform to the decision of the court as the same was contended to be by the defendant.The decree was accordingly amended, so as to require the defendant"to pay to the clerk of this court the sum of twenty dollars, the same to be used for the care and support of said minor child."Said sum of twenty dollars was required to be paid monthly, and the record shows that, pursuant to said decree, the defendant paid, and the plaintiff received, the monthly payments from and including November, 1913, and to and including September 1914.On the 6th day of May, 1914, the plaintiff served and filed a notice of motion for a new trial.On the 26th day of May, 1914, the defendant, by his counsel, filed a motion to strike, or to "dismiss," as it is called, the alleged notice of motion for a new trial, upon the grounds that the same was not filed within the time required by our statute.On June 6th following the court granted defendant's motion, but at the same time, and after granting said motion, also "overruled"plaintiff's motion for a new trial.The plaintiff, on the 19th day of June, 1914, served and filed her notice of appeal from the interlocutory decree entered on November 6, 1913, as before stated.

The defendant has interposed a motion to dismiss the appeal from that decree on the ground that the same was not taken within the time required by our statute, namely, within six months from the entering of the decree, or within six months from the time the decree became final upon the overruling of the motion for a new trial.Defendant's counsel contend that the notice of motion for a new trial was not filed within the time authorized by our statute, and for that reason the filing of said motion did not have the effect of extending the time for taking an appeal from the interlocutory decree of divorce.While, as we have seen, that decree was entered on November 6, 1913, or more than six months prior to the 19th day of June, 1914, when the notice of appeal was served and filed, yet counsel for the plaintiff insists that the notice of appeal was served within proper time for two reasons: (1) Because no notice of the original decision was served on the plaintiff; and (2) because the original decree was the same as if entered on December 20, 1913, and hence an appeal could legally be taken at any time within six months from that date, and inasmuch as the notice of appeal was served on the 19th day of June, 1914, it was served within six months from the date the judgment or decree became appealable.

As to the first proposition, we remark that the record is conclusive that the decree as entered was entirely in favor of the plaintiff, and that the same was prepared by her attorneys.Surely the statute requiring notice of a decision in order to set in motion the time for serving and filing a notice of motion for a new trial was not intended to apply to the party in whose favor the decision is given, when that party has prepared the findings of fact and conclusions for the court to sign.The party who prepares the findings and conclusions, and decree, must of necessity, as pointed out by us in Jensen v. Lichtenstein, 45 Utah 320, 145 P. 1036, be deemed to have notice of the decision, and hence is not entitled to further notice thereof.The plaintiff, therefore, was not entitled to notice of the decision in the divorce proceedings, and hence her notice of motion for a new trial was not filed within the time required by our statute, and it therefore could not be used as a means to extend the time within which to take an appeal.

Plaintiff's counsel, however, insists that, even though that be conceded, the decree did not become final until December 20, 1913, when it was amended in the particular we have stated.We are of the opinion, however, that in view of the record in this casethe amendment in question did not have the effect contended for by plaintiff's counsel.The alleged amendment, or change, was merely to make the decree reflect the original decision as made by the court.The amendment, therefore, related back to the time when the decree was originally entered, and did not have the effect contended for by counsel, namely, that it was the same as if a new decree had been entered as of that date.The plaintiff, therefore, was required to serve and file notice of appeal within six months from the entering of the interlocutory decree, if she intended to appeal from that decree, as pointed out in Parsons v. Parsons, 40 Utah 602, 122 P. 907, andCuster v. Custer, 41 Utah 575, 126 P. 880.That it is manifest she has not done.The motion to dismiss the appeal from the interlocutory decree must therefore prevail.

There is, however, another phase of the case which requires consideration.As already stated, the action was originally commenced for separate maintenance.Notwithstanding that fact, however, the plaintiff asked for permanent alimony in her original complaint in the following words:

"That the court assign and set apart and decree to her, as alimony for the permanent support of herself and her said minor child, such amount of the earnings of the defendant as the court in its discretion may deem just and equitable."

When the complaint was amended by asking for a divorce, the prayer for permanent alimony as given above, remained therein.The court, in the interlocutory decree, however, did not award the plaintiff anything except the twenty dollars per month for the support of the minor child.As we have before stated, nothing is made to appear in the findings of fact or conclusions of law why no permanent alimony was allowed.In view of the fact that no permanent alimony had been allowed by the court in the interlocutory decree, and that an allowance of only twenty dollars per month had been made therein for the child, the plaintiff, on the 8th day of September, 1914, served and filed her notice of motion for an allowance to her of permanent alimony, and also asked for an increase in the allowance for the child as aforesaid.The defendant, on the 10th day of September, 1914, filed a motion in which he moved the court"to dismiss said motion for alimony upon the ground that the matter of alimony had been adjudicated."Two days thereafter the court granted defendant's motion and dismissed plaintiff's motion or application for permanent alimony and for an increased allowance for the support of the child.The plaintiff, in her application, in substance alleged that since the interlocutory decree for a divorce was entered her physical condition, by reason of bodily injuries, had changed so that she at the time and for that reason, was not able to support herself, and also averred that the defendant's earnings were then sufficient to authorize the making of an allowance of alimony for her, and also to permit an increase of the allowance made for the support of the child.All those allegations and averments were contained in papers and affidavits on file in the case, and were specially referred to in the motion.The court, it seems, did not consider the allegations and averments, or changed physical condition of the plaintiff, but entered an order or judgment dismissing the motion upon the sole ground that the matter had been adjudicated in the interlocutory decree of divorce.The plaintiff has also prosecuted a separate appeal from that order or judgment, and now insists that the court erred in that regard.

Defendant's counsel contend that plaintiff's appeal must fail for two reasons: (1) Because the bill of exceptions in which the proceedings are recorded was not settled in time; and (2) because the matter of alimony was adjudicated in the interlocutory decree.And they further assert that, because the appeal from that decree failed for the reasons before stated, we are powerless to review the question.

The contention that the bill of exceptions which contains the matters relating to the second appeal was not settled in time cannot prevail.As to those matters the bill was settled in accordance with the requirements of our statute, and...