Eggers v. Eggers

• Decision Date: 02 October 1967
• Docket Number: No. 10417,10417
• Citation: 153 N.W.2d 187,82 S.D. 675
• Parties: Mary Ellen EGGERS, Plaintiff and Respondent, v. Leonard L. EGGERS, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 187

153 N.W.2d 187

82 S.D. 675

Mary Ellen EGGERS, Plaintiff and Respondent, v. Leonard L. EGGERS, Defendant and Appellant.

No. 10417.

Supreme Court of South Dakota.

Oct. 2, 1967.

Mead Bailey, of Christopherson, Bailin, Wilds & Bailey, Sioux Falls, for defendant and appellant.

Ellsworth E. Evans of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for plaintiff and respondent.

HOMEYER, Presiding Judge.

This appeal involves the power of the trial court to render a money judgment against a defendant in a separate maintenance action for arrearages in support payments. Such judgment was entered and this appeal followed.

In July 1960 plaintiff sued for separate maintenance and the defendant counterclaimed for an absolute divorce. A stipulation on temporary support and other matters was executed by respective counsel for the parties in August 1960. The defendant complied with the terms of the stipulation and the order of the court predicated thereon until time of trial on January 19, 1961 except he did not make one support payment which was required to be made on January 18th. Defendant disappeared from Sioux Falls on or about December 28, 1960, and did not appear at the trial in person, but was represented by counsel.

A decree of separate maintenance was entered in favor of plaintiff on February 14, 1961, and was personally served upon the defendant in Oregon. It required the defendant to pay plaintiff the sum of $800 per month as support money for herself and three minor daughters to be reduced to $700 when the eldest arrived at age 18 years, which was within about one year. It also required defendant to pay $1,000 for support with was due at the time of trial and allowed plaintiff counsel fees and court costs. The payments were declared to be a lien upon real estate owned by the defendant in South Dakota and the decree further provided that 'plaintiff may employ any remedy applicable to enforce such lien and such judgment in the event that the defendant shall fail to make the payments herein provided * * *'.

Defendant made no payments under said decree after departing South Dakota, and subsequently his interest in real estate in this state was sold on special execution and the proceeds applied on the amounts he was required to pay plaintiff under the separate maintenance decree. Thereafter in the same action and before the same judge, plaintiff made a motion for entry of money judgment for the sum of $21,453.90, which represented the amount due her after applying the amounts realized from the special execution sale. Defendant was personally served with the moving papers including notice of hearing thereon at Vancouver, British Columbia, and his counsel in South Dakota, was also served. The matter was heard on October 6, 1966, and again defendant did not appear in person, but was represented by counsel. Defendant did not ask for a modification of the support allowances and did not refute plaintiff's showing on his earning capacity and ability to pay.

Appellant's basic contention is the court below exceeded its jurisdiction and power in adjudicating plaintiff a money judgment for past due support allowances. He relies primarily upon the case of Rudd v. Gerken, 67 S.D. 534, 295 N.W. 491, as support for his position.

Rudd v. Gerken was a divorce action and our attention is directed to a difference in the statutes pertaining to support payments in divorce actions and separate maintenance actions. ¹ We see no substantial reason to distinguish an action for separate maintenance from an action for divorce insofar as the power rests with the court to modify its orders from time to time relative to allowances for the support of wife and children is concerned.

The second paragraph of SDC 14.0727 set forth in the footnote, supra, was added as a part of the 1939 Code revision and gave statutory recognition to an action for separate maintenance. We do not believe either the revisors or the legislature intended to differentiate the two types of actions on modification of support allowances. Even before the amplification accompanying the 1939 revision, this court treated actions for divorce and separate maintenance on the same plane so far as support allowances were concerned, e.g., Milliron v. Milliron, 9 S.D. 181, 68 N.W. 286, where it was recognized that independent of statute a court of equity had the power to compel the husband to maintain his wife and provide her with suit money pending an action for separate maintenance. We perceive no logical reason why a court in a separate maintenance suit should not have power to modify its decree for support following entry thereof if there has been a sufficient change of circumstances to warrant modification. Guinter v. Guinter, 72 S.D. 554, 37 N.W.2d 452; Dougherty v. Dougherty, 76 S.D. 318, 77 N.W.2d 845.

We then come to the question: Does the circuit court have the power by motion in the original suit for separate maintenance to determine the amount owed by the defendant under its judgment and decree and to enter a money judgment for such amount? We answer the question in the affirmative. Reason and prior decisions of this court when carefully analyzed do not impel a contrary conclusion.

It is well settled in this state that a divorce court has continuing jurisdiction over its decrees for alimony, separate maintenance, and custody and support of children. Matthews v. Matthews, 71 S.D. 115, 22 N.W.2d 27; In re Application of Habeck, 75 S.D. 535, 69 N.W.2d 353. An application for modification or enforcement of such decree is a supplementary proceeding incidental to the original suit. It is not an independent proceeding or the commencement of a new action. Houghton v. Houghton, 37 S.D. 184, 157 N.W. 316; Atwood v. Atwood, 253 Minn. 185, 91 N.W.2d 728. See also McBride v. Lomheim, S.D., 144 N.W.2d 564. An application for modification of an allowance of alimony or support money or an application to obtain payments under a decree or divorce or separate maintenance should be made in the original suit and not as an independent proceeding and it has been held due process requires the defaulting husband to be notified of an application to reduce to money judgment alimony and support payments in arrears. Griffin v. Griffin, 327 U.S. 220, 66 S.Ct. 556, 90 L.Ed. 635, rehearing denied 328 U.S. 876, 66 S.Ct. 975, 90 L.Ed. 1645.

In an early case, Harding v. Harding, 16 S.D. 406, 92 N.W. 1080, a somewhat analogous situation was presented. Defendant husband was ordered to pay his wife $35 per month as alimony, but failed to make the payments. The homestead was not mentioned in the original decree. After a hearing the decree was amended allowing the wife a lump sum as alimony and directing the home to be sold on execution to satisfy the amount allowed. It was contended that the divorce court had no jurisdiction by amendment to subject the homestead to the payment of alimony. Referring to our statutes ² Judge Corson speaking for the court said:

'The evident purpose and object of the legislature, in adopting these various provisions, was to give the court full power and authority to enter such judgment, and, upon a proper showing, to modify the same in such manner as the exigencies of the case might require. The present case presents a striking example of the necessity of such a power in the courts. The original judgment provided for the payment of $35 per month alimony by the defendant, but no payments, except the sum of $25, were made. The defendant had been left in the possession of the homestead, on the theory, no doubt, that he would pay the alimony prescribed by the judgment promptly. Two remedies were then open to the court. One was to punish the defendant as for contempt, and the other was to modify the judgment so as to enforce the sale of the homestead property. The court adopted the latter remedy.'

Obviously before a sale of the property could be made as ordered, the court relinquished its power to further modify the decree and made final a judgment for alimony as the basis for the sale on execution. See also Willard v. Gueffroy, 54 S.D. 32, 222 N.W. 486.

In Drake v. Drake, 27 S.D. 329, 131 N.W. 294, the court awarded a lump sum as permanent alimony, declared the same a lien upon the real property of the defendant husband, and directed a sale thereof to satisfy the judgment. On appeal, this court reduced the allowance, but otherwise approved the action of the trial court and stayed execution for 90 days. Again of necessity, a final judgment was adjudicated on an alimony award.

In Narregang v. Narregang, 31 S.D. 459, 139 N.W. 341, the original decree granted the wife alimony in a lump sum, but subsequently the parties stipulated to payment thereof in installments and the extension was approved by the court. With two installments unpaid, plaintiff remarried and the defendant petitioned to be relieved from further payments. The trial court denied the petition and this court affirmed. Respondent contended a decree allowing alimony in a gross sum is the samd as any other money judgment and not subject to modification. The court said it would not decide this question, but in affirming assumed that the right to modify existed and then said that the court did not abuse its discretion in refusing to modify a lump sum allowance. See, however, Shoop v. Shoop, 58 S.D. 593, 237 N.W. 904, and Annot. 48 A.L.R.2d 302.

An exhaustive annotation on retrospective modification of decrees for alimony, separate maintenance of support, appears in 6 A.L.R.2d 1277, with a wide divergence among jurisdictions. Under statutes ³ nearly identical with our own, North Dakota does not allow retrospective modification. Weldy v. Weldy, 74 S.D. 165, 20 N.W.2d 583; Richter v. Richter, N.D., 126 N.W.2d 634. On the other hand, Minnesota with statutes ⁴ not materially different from those in this state permits accrued alimony payments to be modified. Hartigan v. Hartigan, 142 Minn. 274, 171...