Gabbert v. Gabbert

• Decision Date: 24 May 1928
• Docket Number: 6 Div. 59
• Citation: 117 So. 214,217 Ala. 599
• Parties: GABBERT v. GABBERT.
• Court: Alabama Supreme Court

117 So. 214

217 Ala. 599

GABBERT v. GABBERT.

6 Div. 59

Supreme Court of Alabama

May 24, 1928

Appeal from Circuit Court, Jefferson County; William M. Walker Judge.

Petition of T.M. Gabbert to modify a decree rendered in a suit for divorce, alimony, and custody of a child instituted by Frances M. Gabbert against T.M. Gabbert. From a decree denying relief, the petitioner appeals and applies for mandamus. Appeal dismissed; mandamus denied.

Sayre Thomas, and Bouldin, JJ., dissenting.

William Vaughan, of Birmingham, for appellant.

Oliver Henderson, of Birmingham, for appellee.

BROWN J.

The appellee, on April 2, 1927, filed her bill in the circuit court of Jefferson county against the appellant, then her husband, for absolute divorce, the custody of her child, and for alimony. The case proceeded regularly to a final decree entered on the 14th day of May, 1927, dissolving the marriage bonds and permitting the complainant to contract marriage after the expiration of 60 days; committing the custody of the child to the wife, and awarding alimony payable in monthly installments of sixty dollars each, "for the support of complainant and said minor child," commencing on the 18th day of May, 1927, "and to continue *** until said child becomes 21 years of age, marries or dies" upon the happening of any one of such events, such payments to continue for the support of the complainant until she marries or dies. The decree further provided that should the complainant marry before said child becomes 21 years of age, marries, or dies, then said monthly payment shall be deposited in some reliable bank in trust for the child. The decree fixing the alimony and the manner of its payment was, by agreement of the parties, filed in the case and embodied in the decree, carrying the provision that--

"No change of conditions, social or economical, or change of circumstances, of either or both parties hereto or their children, shall increase or diminish the amount herein agreed upon in lieu of alimony and support of said minor child."

On the 12th day of September, 1927, the appellant filed a petition, in the equity division of the circuit court, for a modification of the decree in so far as it fixed the amount to be paid, on the ground that the decree in this respect and in prohibiting modification was improvidently entered; that petitioner was at that time under the age of 21 years, and because of the change in his circumstances he is unable to meet the payments. The petition was dismissed, and from the order dismissing the petition this appeal is prosecuted, and along with the submission of the case on appeal, the appellant submits, in the alternative, a petition for the writ of mandamus.

The appellant's contention is: (1) That the decree in so far as it fixes the amount of alimony to be paid, and the manner of its payment, is interlocutory and never became final in the sense that it is beyond the power of the court to modify it so as to conform to the equities of the case arising through a change in the conditions and circumstances surrounding the parties; (2) that the court is without power to abdicate its authority, and the decree in respect to the assertion that it may not be modified is void.

On the other hand, the appellee contends: (1) That the court exhausted its jurisdiction, without reservation, and the decree is final, and the court is without power to modify it; (2) that on the showing made, assuming authority in the court to modify or alter the decree, the petition was properly dismissed.

The question of controlling importance--the power of the court to modify a final decree after the adjournment of the term or the statutory period over which the plenary and inherent power of the court extends--is a vexed question and one upon which the authorities, including our own decisions, appear to be in conflict.

In some of the states the jurisdiction of courts of equity or chancery, in respect to questions involving divorce, alimony, the custody of children, the duties arising from the relation of the parties, and the manner of its enforcement, is founded on a system materially different from ours; and others have statutes that preserve the court's jurisdiction to modify final decrees in this class of cases. The decisions of such courts cannot be looked to as authority upon the question here. A thorough analysis of the decisions of many different courts touching the question will be found in the case of Ruge v. Ruge, by the Supreme Court of the State of Washington, reported in 97 Wash. 51, 165 P. 1063, L.R.A.1917F, 721, 728.

The general rule with us is that after the adjournment of the court for the term, or the expiration of the time through which jurisdiction is preserved by statute, the court is without power to alter or modify its final judgments and decrees. This was the ruling in Smith v. Smith, 45 Ala. 264. The statute now provides that--

"After the lapse of thirty days from the date on which a judgment or decree was rendered, the court shall lose all power over it, as completely as if the end of the term had been on that day, unless a motion to set aside the judgment or decree, or grant a new trial has been filed and called to the attention of the court, and an order entered continuing it for hearing to a future day." Code 1923, § 6670; Ex parte Margart, 207 Ala. 604, 93 So. 505; Ex parte Kay, 215 Ala. 569, 112 So. 147.

The rule of Smith v. Smith, supra, with slight modifications, was approved in the recent case of Smith v. Rogers, 215 Ala. 581, 112 So. 190, to quote from the opinion in that case:

"In Smith v. Smith, 45 Ala. 264, in construing this statute (Code of 1867, § 2361 [now § 7418, of the present Code, 1923]), it was soundly observed that: 'This "allowance" to the wife is not, in fact, alimony, in the sense of the ecclesiastical law of England; but it is more strictly an arrangement in lieu of a division of the estate of the parties.' It was there held that the statute intended that the 'allowance' should pass to the wife 'in absolute right as a permanent provision for her support,' and that it could not be afterwards modified by judicial decree. By the

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