Greenleaf v. Greenleaf
| Decision Date | 06 December 1894 |
| Parties | GREENLEAF, Plaintiff and respondent, v. GREENLEAF, Defendant and appellant. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Kingsbury County, S.D.
Reversed
A. W. Wilmarth
Attorneys for appellant.
Whiting & Cooley
Attorneys for respondent.
Opinion filed Dec. 6, 1894
On November 2, 1885. the plaintiff was granted a decree of divorce from the defendant by the district court of the late territory of Dakota, held in and for Kingsbury county, By the decree the custody and care of the minor children of the marriage were given to the plaintiff, and the part of the decree relating to the support and maintenance of the children reads as follows:
“And that the defendant pay to the plaintiff, for the support and education of said children, the sum of $420 per annum, payable at Lake Preston, in Kingsbury county, Dakota, in installments of $35 each, on the 1st day of each month, commencing on the 1st secular day of November, 1885, and that such payments continue during the minority of said children, and each of them, unless the court shall hereafter otherwise order and adjudge, and that the defendant pay the costs and expenses of this action. …”
This monthly sum was paid by the defendant until November, 1892, when he moved the circuit court of Kingsbury county, on proper notice and affidavits, to vacate and set aside that part of the decree providing for the payment for the support and maintenance of the said minor children. The circuit court after a hearing in January, 1893, denied the motion, but modified the decree by making an order that the defendant could pay $900 in full discharge of the decree. In April, 1893, a motion for a new trial was made and denied, but the court further modified the decree and its former order by reducing the sum to be paid monthly from $35 to $24 per month. From the order denying the motion for a new trial the defendant appeals.
The appellant contends that, upon the facts disclosed by the evidence, the circuit court should have granted the defendant’s motion, and for the error in denying the same the defendant is entitled to a new trial. The application to the court for a modification of its decree, and to vacate and set aside that part thereof that requires the defendant to pay per month for the support and maintenance of the minor children, was made under the provisions of sections 2583 and 2584 of the Civil Code of this state, which are as follows:
As will be observed, under the provisions of these sections the court is vested with full power to modify its decree and orders relating to alimony, or allowance to minor children. These provisions of the statute were evidently adopted for the purpose of enabling the court to make such modifications or changes in its decree or orders relating to alimony, or the support and maintenance of minor children, from time to time, as the circumstances of the parties might require, and they should therefore receive a liberal construction in furtherance of justice. The power conferred upon the court by these sections is not purely discretionary, but one to be exercised as other judicial powers; and the discretion of the trial court upon questions arising under these sections is subject to review by this court the same as other decisions made by ...
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