Haskell v. Haskell

• Decision Date: 03 November 1911
• Docket Number: 17,328 - (54)
• Citation: 132 N.W. 1129,116 Minn. 10
• Parties: OLGA VON W. HASKELL v. WILLIAM E. HASKELL
• Court: Minnesota Supreme Court

132 N.W. 1129

116 Minn. 10

OLGA VON W. HASKELL v. WILLIAM E. HASKELL

Nos. 17,328 - (54)

Supreme Court of Minnesota

November 3, 1911

Motion in the district court for Hennepin county to amend a judgment awarding alimony to plaintiff. The motion was heard by Steele, J., who denied the motion. From the order denying his motion, defendant appealed. Reversed.

SYLLABUS

Alimony -- modification of judgment.

The court awarding a judgment for alimony, whether such alimony be payable in a gross amount or in installments, has authority to revise or modify such judgment upon application of either party for good cause shown.

Alimony -- evidence of change of fortune.

A judgment for alimony, directing the payment of an annual allowance for the support of the wife and minor children, may be modified upon proof of facts showing a substantial change in the financial circumstances of the party required to pay such allowance, or of the party receiving the same.

Alimony -- bond to secure future payments.

The fact that a party was required by a judgment for alimony to give a bond to secure the required future payments does not change the rule permitting a modification of the judgment for alimony, if such modification is made equitable by a substantial change in the circumstances of the parties.

Discretion of court -- denial of application without prejudice.

An application to modify such judgment is addressed largely to the discretion of the trial court. Where the court denies an application without prejudice to the renewal thereof, the inference arises that the court did not determine the merits of the application, but denied the same upon matters of form.

Kerr & Fowler, for appellant.

Koon Whelan & Hempstead, for respondent.

OPINION

SIMPSON, J.

This is an appeal from an order denying a motion for the modification of a judgment awarding alimony in a divorce action. The judgment was entered in 1905 on complaint of the respondent. She was granted an absolute divorce, and was given the custody of four minor children. The judgment further provided:

"It is further ordered, adjudged, and decreed that plaintiff is entitled to have and receive by way of alimony out of the estate of said William E. Haskell, defendant, and said defendant is hereby ordered and adjudged to pay to the plaintiff, the sum of five thousand ($5,000) dollars per annum from the date hereof, so long as plaintiff shall remain unmarried, for the support and maintenance of plaintiff, and the support, education and maintenance of the said children of plaintiff and defendant, and that the same be paid in equal quarter yearly payments, in advance, on the first days of May, August, and November, in each year, the first payment to be made February 1, A.D. 1903. The payment of the money hereby awarded and adjudged to be paid is in lieu of plaintiff's right of dower, or other interest, in defendant's estate. And it is further ordered, adjudged, and decreed that in the case of the marriage of plaintiff while any of the children hereinbefore named are under the age of twenty-one (21) years, defendant shall pay to each of said children, until they shall respectively attain the age of twenty-one (21) years, or to a trustee, for their use and benefit, to be appointed by the court, or agreed upon by the parties hereto, the sum of one thousand dollars ($1,000) per annum, payable quarter yearly, in advance, from the date of the marriage of said plaintiff until the child so entitled to the same shall become twenty-one (21) years of age: Provided, however, that if the said Celia Elizabeth Haskell shall marry before arriving at the age of twenty-one (21) years, the payment of any money which she would otherwise be personally entitled to receive hereunder shall cease and determine upon her marriage. And it is further ordered, adjudged, and decreed that said defendant give to the plaintiff security for the payment of said sum or sums of money hereinbefore adjudged to be paid by him, in manner and form, and with surety satisfactory to, and approved by, the attorney of said plaintiff, or running to the clerk of said court, to be approved by one of the judges thereof."

The required bond was given and all payments have been made as required up to the time the motion for a modification of the order was made. The motion of the appellant for a modification of the provisions of the judgment as to future payments was based upon the files in the action and an affidavit of the appellant.

It is made to appear by this affidavit that at the time of the decree the appellant was a man of large financial means, with an income exceeding $15,000 a year; that since that time, through the failure of a newspaper in which he was a large stockholder, he has lost all his property, except property not exceeding in value $2,000, and that at the time of making the affidavit he was indebted to the extent of $600,000; that he was out of employment, and had no present income, and no means of paying the amount required by the decree to be paid to the respondent. It is further made to appear that in addition to the annual payment of $5,000 a year, required to be made to respondent by the terms of the judgment, appellant gave her cash and property aggregating in amount and value upwards of $33,000; that the respondent has large property holdings and interests of her own, from which she receives an income separate and apart from property and income given her by the appellant. It further appears that two of the four minor children have arrived at majority; that a third son, although still a minor, has left school and is able to support himself.

No opposing affidavits were filed or presented on behalf of the respondent.

The court, by its order, denied the motion "without prejudice to the making of any other motion or motions in the premises, whether like unto this one or otherwise." The ground of the court's refusal to grant the motion is not stated in the order or in a memorandum.

Under the statute of this state the court awarding a judgment for alimony, whether such alimony be payable in a gross amount or in installments, has undoubted authority to revise or modify such judgment. This power may be exercised upon the application of either party for good cause shown. A substantial change from the situation that prompted or made proper the terms of the original decree justifies a change in those terms. An application for such change or modification is addressed largely to the discretion of the trial court. This authority of the court existed at the time the decree here involved was entered. Section 4809, G.S. 1894; section 3592, R.L. 1905; Holmes v. Holmes, 90 Minn. 466, 97 N.W. 147; Bowlby v. Bowlby, 91 Minn. 193, 97 N.W. 669; Barbaras v. Barbaras, 88 Minn. 105, 92 N.W. 522; Smith v. Smith, 77 Minn. 67, 79 N.W. 648; Weld v. Weld, 28 Minn. 33, 8 N.W. 900; Semrow v. Semrow, 23 Minn. 214.

Such being concededly the authority of the court, two questions are involved in this...