Erickson v. Erickson
| Citation | 232 N.W. 793,181 Minn. 421 |
| Decision Date | 31 October 1930 |
| Docket Number | 28,057 |
| Parties | ZETA ROSE ERICKSON v. HERBERT ERICKSON |
| Court | Minnesota Supreme Court |
Defendant appealed from an order of the district court for Hennepin county, Salmon, J. modifying a divorce decree in respect to the amount of alimony therein provided. Affirmed.
Changed situation of parties justified amended decree as to alimony.
1. The evidence was sufficient to show that there had been such change in the situation and circumstances of the parties as to justify the trial court in amending a decree of divorce as to the amount of alimony.
Proper to consider defendant's future income from trust estate.
2. The fact that income from a trust estate had not been paid over to the defendant by the trustees at the time of the hearing did not prevent the court from taking such income into consideration in awarding additional alimony, where it appears that such income is reasonably certain and the trustees are legally bound to pay same to the defendant annually.
When such income may be attached by creditors.
3. By the terms of the trust, the income in question cannot be reached or attached by creditors while in the hands of the trustees. But the order appealed from does not seek to reach income in the hands of the trustees, and when received by defendant such income becomes assets in his hands free from the trust.
Court's power to revise decree not affected by alimony agreement of parties.
4. A provision in an agreement entered into between the parties during the pendency of the divorce action, whereby defendant agreed to pay the plaintiff a specified sum as alimony, and plaintiff in consideration thereof released the defendant from all further claims against him and his property, did not oust the court of power to revise and amend its judgment of divorce as to the amount of alimony to be paid, where the judgment, although it grants the same amount of alimony as the agreement, makes no reference to the agreement and does not embody the release provision thereof.
Malmberg & Nelson and James E. O'Brien, for appellant.
Keyes Pardee & Solether, for respondent.
Defendant appeals from an order modifying a decree of divorce in respect to the alimony therein provided.
Plaintiff was granted a divorce from defendant on November 30, 1923, and was granted the custody of the three minor children of the parties. The decree of divorce provided that defendant pay to the plaintiff as and for temporary and permanent alimony, attorney's fees, and suit money the sum of $1,000 in cash. There were some additional provisions for payments by defendant to aid in support of the children. On March 5, 1930, the court, on application and motion of plaintiff, granted an order modifying the decree of divorce so as to require the defendant to pay to the plaintiff as additional permanent alimony the sum of $150 per month from and after March 10, 1930. It also granted an increase in the amount to be paid by defendant for support of the children, and required defendant to pay attorney's fees and certain expenses incurred by plaintiff. No complaint is now made as to the allowance for support of the children or for attorney's fees and expense items.
1. The evidence is amply sufficient, if not conclusive, to show that there has been such change in the situation and circumstances of the parties since the decree of divorce was entered as to justify the court in amending the decree as to the amount of alimony to be paid. The liberal provisions of G.S. 1923 (2 Mason, 1927) § 8603, clearly authorize such amendments.
2. Defendant challenges the order made on the grounds now to be considered. It appears that the change in his financial circumstances and increase in resources consists of an interest in a trust estate under the will of his father, which became vested by the death of the father in 1928. Under that trust defendant is entitled, without qualification, to receive annually from the trustees his share of the income of the trust property and to receive his share of the trust estate in four equal payments or distributions in 5, 10, 15 and 20 years after the father's death. Defendant shows that up to the time the motion was heard he had received only $500 of this income. But the evidence shows that the trust is now fully established and in operation; that defendant's income therefrom is reasonably certain to amount to $5,000 or more a year; and that the trustees are legally bound to pay over such income to him annually. The district court can safely be trusted to protect defendant in case of any unforeseen failure of income.
3. It is also pointed out that the trust property and the income therefrom, while in the hands of the trustees, are not subject to the debts of the beneficiaries, the claims of their creditors, or to any alienation or diversion. The will so provides. The order here made does not seek to reach any property or income while in the hands of the trustees but only requires defendant to pay the sums stated from his own resources after their coming into his ownership and control. When received by him, the income becomes assets in his hands free from the trust. First Nat. Bank v. Olufson, 181 Minn. 289, 232 N.W. 337.
4. It appears that during the pendency of the divorce action the plaintiff and defendant entered into a written stipulation providing, in case a divorce was granted to plaintiff, that the court might embody in its decree an order requiring defendant to pay to plaintiff as and for temporary and permanent alimony, attorney's fees, and suit money, the sum of $1,000 in cash. The stipulation contains the same provision as to aid for support of the children as is contained in the decree. The important part of the stipulation is the next following paragraph reading:
"And in consideration of the payment to said plaintiff by the said defendant of the said sum of One Thousand (1,000) Dollars, the said plaintiff does hereby relinquish any claim, right, or interest she may have in and to any property owned by said defendant at this time or which he may hereafter acquire and in and to any claim against said defendant growing out of the marriage relation between said plaintiff and defendant and said plaintiff does hereby release said defendant from the payment to her of any attorney fees and suit money in said action."
The court made no mention of the stipulation in its findings conclusions of law, or judgment. The paragraph just quoted, releasing the defendant from further liability for alimony, was not included in the court's findings, conclusions of law, or judgment. It is the claim of the defendant that the stipulation between the parties was a final property settlement and was adopted by the court in the divorce decree and that the decree cannot now be amended. It may be inferred that the stipulation was known to the court at the time the decree of divorce was rendered and that the court fixed the amount of the alimony on the basis of the stipulation. It may be further inferred that the court intentionally omitted from its decree any reference to the stipulation and refused to adopt or be bound by the release clause therein,...
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