Dougherty v. Dougherty, 9561

• Decision Date: 24 July 1956
• Docket Number: No. 9561,9561
• Citation: 76 S.D. 318,77 N.W.2d 845
• Parties: Armada C. DOUGHERTY, Plaintiff and Appellant, v. Reginald V. DOUGHERTY, Defendant and Respondent.
• Court: South Dakota Supreme Court

Page 845

77 N.W.2d 845

76 S.D. 318

Armada C. DOUGHERTY, Plaintiff and Appellant, v. Reginald V. DOUGHERTY, Defendant and Respondent.

No. 9561.

Supreme Court of South Dakota.

July 24, 1956.

Bicknell, Holland & Delaney, Webster, for plaintiff-appellant.

Rex W. Harris, Webster, for defendant-respondent.

ROBERTS, Presiding Judge.

The plaintiff and defendant were married in 1921. In 1944, plaintiff commenced an action for divorce on the grounds of desertion and mental cruelty. September 27, 1944, a decree was entered granting the plaintiff a divorce and awarding to her alimony and custody of their seventeen year old son. Prior to the time of the granting of the divorce, an agreement was entered into between the parties, as to alimony and support. Paragraph 2 of the divorce decree reads: 'That the defendant pay to the plaintiff the sum of $60.00 per month, as alimony and support for the plaintiff, and that the written stipulation herein on file whereby defendant agrees to make said monthly payments, is hereby approved and ratified.'

May 20, 1955, an order was entered requiring plaintiff to show cause why the above portion of the decree should not be stricken. In his supporting affidavit, defendant states that there has been a change of conditions since rendition of the decree of divorce by reason of the coming of age of the son of whom plaintiff had custody; that plaintiff inherited one-third of the property of an estate 'which according to the inheritance tax inventory and appraisal filed in said estate gave to each of the (three) heirs an assigned value of property inventoried at $23,006.04'; that defendant has remarried and his family consists of himself, wife, two sons and a stepdaughter; that his salary is $440.50 per month from which he pays federal taxes, hospital insurance, pension contributions and provides for the maintenance of his family; and that the only other income available to him is a monthly payment of disability compensation amounting to $74.

The plaintiff in her affidavit in answer to the order to show cause states that defendant owes plaintiff for unpaid alimony and support the sum of $2,880; that the financial condition of plaintiff has not improved since rendition of the divorce decree; that she inherited the property referred to by plaintiff in 1939 when the parties were still living together and that such inheritance was used for support of the family; that during the past two years she has not netted more than $350 from a quarter section of land which she acquired prior to the divorce; that the net income from her residence property in Webster does not exceed the amount of rental paid by her for a dwelling in Minneapolis, Minnesota, where she now resides; and that she is now employed, but because of disability earns only $13.50 per week less payroll and tax deductions.

July 19, 1955, after hearing, an order was entered from which plaintiff appeals. It is therein ordered and adjudged that paragraph 2 of the divorce decree 'be and the same is hereby deleted, stricken from and removed from the terms and conditions of said judgment with the same force and effect as though the same had never been incorporated therein.' The court found as appeared from recitals in the order 'that the issue of the said marriage are grown up, that the plaintiff is employed, that the children of said marriage are the sole support of themselves and their respective families, that if properly handled her real estate should produce sufficient income for upkeep, payment of taxes and for the support of the plaintiff. The Court finds that defendant is married and has a wife and three young children in said family all of whom he is obligated to * * * support and provide for.'

The court had jurisdiction to entertain an application for modification of the divorce decree. SDC 14.0726 provides: 'Where a divorce is granted for an offense of the husband, 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 * * * as the court may deem just, having regard to the circumstances of the parties represented; and the court may from time to time modify its orders in these respects.' These provisions authorizing modification enter into every decree providing for the payment by the husband of an allowance to the wife as fully as though they were incorporated into the decree. The decree can, however, be modified only upon a showing of a change in the condition and circumstances of the parties accruing subsequent to its entry and existing at the time of the application. Matthews v. Matthews, 71 S.D. 115, 22 N.W.2d 27, and cases cited. The original decree in other words is res judicata except in case of changed conditions subsequently arising and proceedings for modification cannot be used to review the equities of the original decree. To this effect is, Vert v. Vert, 3 S.D. 619, 54 N.W. 655, quoted with approval in Guinter v. Guinter, 72 S.D. 554, 37 N.W.2d 452, 453: "To...