Gale v. Gale, 7944
| Decision Date | 16 June 1953 |
| Docket Number | No. 7944,7944 |
| Citation | 123 Utah 277,258 P.2d 986 |
| Parties | GALE, v. GALE. |
| Court | Utah Supreme Court |
Shirley P. Jones, Jr., Salt Lake City, for appellant.
McCullough, Boyce & McCullough, Salt Lake City, for respondent.
The legal principle controlling in this case is that a divorce decree may not be modified unless it is alleged, proved and the trial court finds that the circumstances upon which it was based have undergone a substantial change. 1
The plaintiff was awarded a decree of divorce May 29, 1951. A property settlement was approved which gave her the family home (being purchased under contract), certain personal property and the custody of four minor children for whose support the defendant was required to pay $25 per month each, totaling $100.
Eighteen months later, plaintiff filed the instant proceeding, seeking to modify the decree by increasing the support money for the children, alleging that the 'needs of the children have increased' and that 'the defendant has bettered his financial condition' but fails to state any further particular with regard thereto. After hearing, the trial court made similar findings in the language above quoted and ordered the support money increased to $35 per child, totaling $140, from which order defendant appeals.
Review of the evidence taken at the hearing shows that although the defendant was ill at the time of the divorce, had been hospitalized and was temporarily off his job, the award was based on his then earning capacity on that job. The plaintiff so testified and the decree reads: 'At such time as the defendant resumes employment * * * he shall pay plaintiff $25.00 per month for each child * * *.'
The record shows with certainty not to permit of misunderstanding that the defendant is now employed on the same job, with the same company, bus driver with Pacific Greyhound Lines, as he was at the time of the divorce; and further that his rate of pay, 7 1/4cents per mile, and other conditions of his employment are the same, so that there has been no substantial change in his income. For the twelve months period prior to the divorce, his average monthly take-home pay after expenses and deductions was $329.05 as compared with an average for 15 months since the divorce of $309.28; as indicated, this shows no increase but actually a decrease. But even if this variation were that much the other way, it would hardly justify any modification of the decree.
It is true that children's needs increase as they get older. These children ranged in age from 2 to 12. But except for the fact that they had become 18 months older in the meantime there is no evidence showing any added needs. This short advance in age is not alone any such substantial change in circumstances as would warrant modification of the decree.
There is no question but what plaintiff cannot fully support the children on $100 a month, and that she needs the $140. That, however, is...
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