Cole v. Cole, 7717
| Decision Date | 11 January 1952 |
| Docket Number | No. 7717,7717 |
| Citation | 121 Utah 151,239 P.2d 615 |
| Parties | COLE, v. COLE. |
| Court | Utah Supreme Court |
King & Anderson, Salt Lake City, for appellant.
Dudley D. Crafts, Delta, for respondent.
The defendant appeals from a denial of her request for modification of a divorce decree. On May 18, 1936 the plaintiff Winslow C. Cole was granted a divorce from the defendant Marguerite D. Cole on the ground of desertion. Her counterclaim for separate maintenance was denied. No children were born of the marriage. The decree of divorce required the plaintiff to pay to the defendant one-half the value of the parties' community property, repay a sum of money which the defendant had loaned to the plaintiff and pay $60 per month alimony for one year and $30 per month the following year, 'unless the court otherwise orders and directs.' These payments were made, and thereafter plaintiff made no further contributions to the support of his ex-wife, nor was additional alimony requested. On February 23, 1951 the defendant filed a petition for modification of divorce decree so as to require the plaintiff to pay $150 per month alimony or $6,000 in lieu thereof as a lump sum settlement for the ensuing six-year period.
The trial court found that plaintiff's income was $2,250 per year in 1936; that it is now $5,250; that plaintiff is now sixty-two years of age, is married and has a son age eleven and a daughter age ten dependent upon him for support; that he owns property consisting of a home, farming lands and water stock of a value of $37,857 plus an apartment house which is owned by plaintiff and his wife, worth $6,000 above encumbrances. The defendant, at the time of the divorce, earned $150 per month as a school teacher. She is now partially deaf and has high blood pressure and a heart ailment, all of which prevent her from obtaining gainful employment. For several years she has been dependent upon her sisters and brothers and other relatives for her maintenance. Defendant has no property except an interest worth approximately $500 as an heir in her father's estate.
Considerable argument is devoted to the problem of whether a divorce decree which provides for alimony for two years can be modified fourteen years later so as to require the husband to pay additional alimony for the support of his former wife. We do not decide this question in this case.
We do agree with the trial court that even if such modification were permitted, it would be unreasonable under all the facts and circumstances of this case to require the plaintiff once again to contribute to the defendant's support. It would be unjust to the present dependents of the plaintiff to require him to support his former wife from whom he became divorced because of her desertion. Plaintiff's age, the lapse of time since the divorce, his present financial condition and earning ability are not such as to justify an order of modification of the divorce decree. See the factors taken into consideration in determining the rights and obligations of parties to a divorce suit in Pinion v. Pinion, 92 Utah 255, 67 P.2d 265; MacDonald v. MacDonald, Utah, 1951 236 P.2d 1066. It is true that a substantial change has occurred in both parties' material circumstances. Plaintiff is employed as a water commissioner at a salary of $350 per month and has a net income of $900 per year from his farm property. The defendant is unable to obtain gainful employment. But after a...
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Wilde v. Wilde
...alimony claim is not governed by the 1995 version of the statute, we need not address this argument further. Under Cole v. Cole, 121 Utah 151, 239 P.2d 615 (1952), and its progeny, when alimony is still being paid, an application for new alimony is timely. See, e.g., Naylor v. Naylor, 700 P......