Glad v. Glad

• Decision Date: 14 November 1927
• Docket Number: 6236
• Parties: ERIC A. GLAD, Plaintiff and appellant, v. SOPHIE GLAD, Defendant and respondent.
• Court: South Dakota Supreme Court

51 S.D. 574

215 N.W. 931

ERIC A. GLAD, Plaintiff and appellant, v. SOPHIE GLAD,

Defendant and respondent.

South Dakota Supreme Court

Appeal from Circuit Court, Minnehaha County, SD

Hon. John T. Medin, Judge

File No. 6236—Affirmed

M. J. O’Donoghue, Philadelphia, Pa.

Attorneys for Appellant.

T. O. Gilbert, Willmar, Minn.

Lewis Larson, Sioux Falls, SD

Attorneys for Respondent.

Opinion filed November 14, 1927

MISER, C.

This is an appeal from an order denying plaintiff’s application to have a decree of divorce modified. It appears, from the affidavits of the parties that they were married in 1908, and have one child, now 12 years of age. After 1919, the parties hereto did not live together. In 1922, plaintiff commenced divorce proceedings. Defendant’s answer, duly served, was filed in the circuit court of Minnehaha county on October 4, 1922. However, the case was not brought on for trial until May 29, 1925. While the action was pending, plaintiff sought to have defendant withdraw her answer and permit him to obtain his divorce without a contest. The decree, while reciting that defendant appeared by counsel, states that no evidence was introduced on the part of the defendant. However, the defendant was in Sioux Falls on the day of the trial, accompanied by her uncle. During the negotiations which took place just before the trial, her uncle, who was sheriff of the county in Minnesota where defendant resides, threatened plaintiff with arrest on the charge of wife and child desertion, and was told by plaintiff’s counsel that he would fight extradition. Just before trial, plaintiff agreed with defendant upon the terms and conditions of the decree and for the bond as hereinafter stated.

Accordingly, while the decree recites that divorce was granted on account of defendant’s cruel and inhuman treatment of the plaintiff, the custody of the child was awarded to defendant, and plaintiff was required to pay to the defendant the sum of $30 a month for the support of the child until it should reach the age of 21 years, and also the sum of $4,000 alimony in monthly installments of $10 or more until the full sum of $1,000 should be paid, such payments to cease if defendant remarried; and further required that the plaintiff furnish a bond to insure the payments aforesaid, said bond to be signed by good and reliable bondsmen to be approved and allowed by the court; and plaintiff was also required to pay the costs. The affidavits show that, from 1919 until the hearing in 1925, plaintiff had contributed about $700 to the support of defendant and their child, and that, on one occasion, defendant had had plaintiff arrested for desertion and placed in jail. While this hearing was had on May 29th, the bond mentioned therein and agreed to before the hearing was not signed by the plaintiff until June 1, 1925, and was not signed and acknowledged by the bondsmen thereon until September 30, 1925. Just when the bondsmen justified does not appear, but the bond was approved by the judge on December 2, 1925, on which date the decree of divorce was also signed by the judge and filed by the plaintiff with the clerk of courts. On February 23, 1926, upon the affidavit of plaintiff, the trial court issued an order to show cause requiring defendant to show cause why an order should not be made modifying the terms of the decree of divorce so as to reduce the monthly payments from $40 per month to $20 per month. In plaintiff’s affidavit, in addition to reciting many of the foregoing facts, plaintiff stated that he was unable to keep up the payments; that he had no available means except his earnings as a commercial traveler; that he had a wife to support; that, while in 1922 and 1923 he was earning $150 per month, he did not make his expenses during the year 1924, and during the year 1925 did not earn more than necessary for his living expenses; and that, at the time of making the affidavit, he was earning $30 a week, and his living expenses per month were $105; and that the child of plaintiff and defendant is well taken care of by defendant’s uncle; and that $20 a month is the most that plaintiff would be able to pay for the support of his former wife and child.

Defendant, in her answer to the order to show cause, denies that the plaintiff was forced to accept the terms and conditions of the divorce decree, but says that plaintiff voluntarily agreed because he owed her over $1,000 on account of failure to make payments for the support of herself and their child under a former arrangement, and because he wanted to marry another, and she consented to the terms and conditions relying on the bond and states that, from the time the decree was signed up to the time of defendant’s affidavit, the plaintiff had made no payments; that it is impossible for the defendant to support the child for any less than the amount...