Cummings v. Lockwood

• Decision Date: 09 July 1958
• Docket Number: No. 6655,6655
• Parties: Clarence Charles CUMMINGS, Petitioner, v. Hon. Lorna E. LOCKWOOD, Judge of the Superior, Court of the State of Arizona, In and for the County of Maricopa, Respondent.
• Court: Arizona Supreme Court

Page 1012

327 P.2d 1012

84 Ariz. 335

Clarence Charles CUMMINGS, Petitioner, v. Hon. Lorna E. LOCKWOOD, Judge of the Superior, Court of the State of Arizona, In and for the County of Maricopa, Respondent.

No. 6655.

Supreme Court of Arizona.

July 9, 1958.

Marshall W. Haislip, Phoenix, for petitioner.

Charles Christakis, Phoenix, for respondent.

JOHNSON, Justice.

The sole question presented is whether the amount of an allowance of alimony, in the final judgment, payable in installments of $75 per month 'for a period of six (6) months only' is subject to subsequent modification under A.R.S. § 25-321. That section provides:

'The court may from time to time after entry of final judgment, on petition of either party, amend, revise and alter the portions of the decree which relate to payment of money for the support and maintenance of the wife * * * as may be just * * *.'

The wife was granted a divorce from the petitioner herein on the 9th day of September, 1957, with a provision in the decree that

'3. That the defendant (petitioner herein) pay to plaintiff the sum of seventy-five and no/100 ($75.00) dollars per month, beginning with the 15th day of September, 1957, for a period of six (6) months only as and for alimony paynents.'

The petitioner paid each of said payments as they became due, and on the 13th day of February, 1958, two days before the last payment was due, the wife filed a petition to modify the decree, to require the petitioner herein to pay her $150 per month, on the ground that she had been seriously injured which required an operation on her foot. The petitioner responded that prior to the divorce the parties entered into an agreement to settle their property rights and as a result each received the sum of $2,300 from the sale of their home, and that certain personal property was given to the wife on condition she pay the balance due thereon, which she failed to do, and that petitioner has been compelled to pay same and that he is now heavily indebted.

The trial court entered an order of modification requiring the petitioner to pay his former wife the sum of $100 per month for her support and maintenance until further order of court.

We issued an alternative writ of prohibition restraining the respondent court and the judge thereof from further proceedings, and to show cause why such court and the judge thereof should not be absolutely restrained and prohibited in the matter of awarding any further sum from petitioner for the support and maintenance of his former wife.

The statute authorizing the payment of funds for the support and maintenance of the wife is A.R.S. § 25-319:

'In the final judgment of divorce the court may, in addition to division of the common property of the parties or in lieu thereof, direct the husband to pay to the wife such amounts as are necessary for support and maintenance of the wife and minor children of the parties whose custody is awarded to the wife, as may be necessary or proper. The court may adjudge that the amount be paid in one sum or in installments. * * *' (Emphasis supplied.)

It is established in this jurisdiction that the awarding of support and maintenance for the wife is addressed to the sound discretion of the trial court, and this court will not interfere with such discretion unless it is clear that some injustice has been done. Schuster v. Schuster, 42 Ariz. 190, 23 P.2d 559; Franklin v. Franklin, 75 Ariz. 151, 253 P.2d 337.

We are of the opiniin thathate decree of divorce entered September 9, 1957, by the Honorable Renz L. Jennings, who was the presiding judge at the time of the hearing on the complaint for divorce, ordering the petitioner herein to pay his wife 'the sum of $75.00 per month for six months only' as alimony, was in effect the award of a gross or lump sum to be paid in installments and within the discretion of the trial court under A.R.S. § 25-319, quoted above.

We are likewise of the opinion that where the trial court determines that the wife is entitled to an award for her support and maintenance it is a matter of sound judicial discretion, to be exercised with reference to established principles and upon a view of all the circumstances of each particular case, whether to order an amount paid in one sum or in installments. 17 Am.Jur., Divorce and Separation, § 670; 27 C.J.S. Divorce § 235. We know of no fixed rule for the determination of the question of whether gross or installment alimony should be awarded.

In Schouler Divorce Manuel, 1944 Ed., p. 391, the author says:

'There does not seem, however, to be a fixed rule in any state where the allowance may be made payable either periodically or in one lump sum by which can be determined the question of whether gross or installment payments should be made. Usually the determination is based upon the facts of the particular case, taking into consideration the husband's ability to make payment in one manner or the other an what the best interests of the parties require.'

In the instant case the experienced trial judge determined from the particular facts and circumstances that the best interests of the parties required an award to the wife in one sum payable in installments, and we cannot say that such an award was an abuse of discretion.

The decree of divorce entered by the trial court specifically provided that alimony was payable for six months only. The use of the word 'only' determines the question. It is a restrictive word, a word of limitation. Webster's New International Dictionary, Second Edition, and Webster's Dictionary of Synonyms. Its use in the decree of divorce meant, and can only mean, that...