Daniels v. Daniels

• Decision Date: 01 April 1960
• Docket Number: No. 8688,8688
• Citation: 351 P.2d 236,82 Idaho 201
• Parties: Verda DANIELS, Plaintiff-Appellant, v. Dwight DANIELS, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 236

351 P.2d 236

82 Idaho 201

Verda DANIELS, Plaintiff-Appellant, v. Dwight DANIELS, Defendant-Respondent.

No. 8688.

Supreme Court of Idaho.

April 1, 1960.

Rehearing Denied May 2, 1960.

May & May, Twin Falls, for appellant.

Kramer & Walker, Twin Falls, for respondent.

KNUDSON, Justice.

After some twenty-two years of married life appellant, on March 31, 1950, was granted a divorce for the fault of respondent. At the time the divorce was granted a property settlement agreement had been entered into which was approved by the court and its principal provisions were incorporated in the decree of divorce. It was provided in the agreement and decree that respondent should pay to appellant the sum of $100 per month commencing with April, 1950, and continuing until the death of either party or the remarriage of appellant.

In 1952 respondent was injured in an automobile accident and on October 18, 1955, pursuant to written stipulation signed by the parties, the decree of divorce was modified by reducing said payments to $75 per month. On December 9, 1957, appellant filed her affidavit herein which alleged that respondent was in default as to said monthly payments in the sum of $675 and prayed for an order requiring respondent to show cause why he should not be adjudged in contempt of court. On December 12, 1957, respondent filed a motion to modify the decree by striking therefrom the paragraph requiring respondent to make said monthly payments claiming inability of respondent to make the payments. A hearing was had on December 14, 1956, following which the court found that respondent was delinquent in his payments to appellant and notified the parties that respondent's application for modification of the decree would be heard as soon as the delinquent payments had been made. On December 31, 1957, respondent filed a supplemental motion for an order terminating all such payments in the future. Said supplemental motion was made upon the contention that appellant had remarried and based the motion upon appellant's testimony at the hearing had on December 14, 1957, and the affidavit of Mrs. Joseph LaClair.

On January 7, 1958, a hearing was again had upon the motions following which the court made findings of fact and conclusions of law and on March 11, 1958, entered an order reducing the payments from $75 to $25 per month, effective December 5, 1957. The appeal is taken from this order.

The court found that commencing about the middle of July, 1957, while in the state of California, appellant had indulged in intimate and immoral sexual relations with one Scribner, a married man; that for a few days while attending hearings at Twin Falls, Idaho, appellant and Scribner had been registered as husband and wife and occupied a one bed unit at a local motel; that by reason of appellant's sexual relations with Scribner, appellant was guilty of adultery in both California and Idaho and that such acts constitute immorality of such nature as to justify a reduction in said monthly payments. The court also found that there was no evidence that appellant had in other respects or with other men conducted herself in any objectional manner.

Appellant assigns as error the following quoted portion of the trial court's conclusions of law, to-wit:

'The original sum of $100.00 per month awarded to the plaintiff in the original decree of divorce which was later reduced to $75.00 per month in a modified decree of divorce is not property settlement, but is to be construed as and is alimony.'

It cannot be denied that the $100 monthly payments were originally provided for by the 'Property Settlement Agreement' which was entered into by the parties prior to the granting of the divorce. However said agreement does not specify whether such monthly payments are to be made in lieu of a share of the community property or as alimony. The record does disclose that in the 'Stipulation for Modification of Decree of Divorce' signed by appellant and her then counsel, dated October 14, 1955, the $100 payments provided for in said settlement are referred to as alimony payments. Said stipulation also provides that the modified decree shall provide 'that the defendant shall pay to the plaintiff as alimony the sum of $75.00 per month * * *'. The order modifying the decree of divorce also specifically designates the reduced monthly payments of $75.00 as alimony. We consider such showing in the record sufficient to support the conclusion reached by the trial court and it will not be disturbed upon appeal. Daniels v. Daniels, Idaho, 336 P.2d 112; Shellhorn v. Shellhorn, 80 Idaho 79, 326 P.2d 64; Watkins v. Watkins, 76 Idaho 316, 281 P.2d 1057; Crenshaw v. Crenshaw, 68 Idaho 470, 199 P.2d 264.

The remaining assignments of error challenge the authority of the trial court to modify the divorce decree by reducing the monthly payments based solely upon the ground that appellant has committed immoral acts by having illegal sexual intercourse with a married man not her husband.

There are cases supporting the view taken by the trial court; however in view of the former decisions of this Court, the circumstances of this case and the views expressed by courts which we feel have rendered the most logical and well considered opinions upon the subject, the order must be set aside.

Under the statutes of this state, the court has power at any time to modify its original decree providing for the suppot and maintenance of the wife and children, where the divorce has been granted for the offense of the husband. I.C. § 32-706 provides:

'Alimony for fault of husband.--Where a divorce is granted for an offense of the husband, including a divorce granted upon the husband's complaint, based upon separation without cohabitation for five years, the court may compel him to provide for the maintenance of the children of the marriage, and to make such suitable allowance to the wife for her support as the court may deem just, having regard to the circumstances of the parties respectively; and the court may, from time to time, modify its orders in these respects.'

It will be noted that this statute authorizes the court to make sufficient allowance having regard to the circumstances of the parties respectively. This Court has repeatedly stated and cited the rule in this State to be that only substantially changed circumstances and conditions of the parties will warrant a change or modification of the decree. In Simpson v. Simpson, 51 Idaho 99, 4 P.2d 345, 346, it is stated:

'However, the rule is well established that the authority to modify such a decree can only be exercised upon a showing of material, permanent, and substantial change in the circumstances and conditions of the parties * * *.

And the burden of showing such changed circumstances is upon the party seeking the modification.'

See Humbird v. Humbird, 42 Idaho 29, 243 P. 827; Gish v. Gish, 72 Idaho 465, 244 P.2d 143; Maudlin v. Maudlin, 68 Idaho 64, 188 P.2d 323; Rogich v. Rogich, 78 Idaho 156, 299 P.2d 91; Ashton v. Ashton, 59 Idaho 408, 83 P.2d 991; McRoberts v. McRoberts, 80 Idaho 511, 335 P.2d 342; Application of Anderson, 79 Idaho 68, 310 P.2d 783.

In the...