Holmes v. Holmes, 4-2669.

• Decision Date: 10 October 1932
• Docket Number: No. 4-2669.,4-2669.
• Citation: 53 S.W.2d 226
• Parties: HOLMES v. HOLMES.
• Court: Arkansas Supreme Court

53 S.W.2d 226

HOLMES v. HOLMES.

No. 4-2669.

Supreme Court of Arkansas.

October 10, 1932.

Appeal from Pulaski Chancery Court; Frank H. Dodge, Chancellor.

Suit by Nonie G. Holmes against Glen M. Holmes. From a decree modifying alimony provisions of original divorce decree, plaintiff appeals.

Affirmed.

Fred A. Isgrig and Harry Robinson, both of Little Rock, for appellant.

Owens & Ehrman, of Little Rock, for appellee.

McHANEY, J.

On February 12, 1927, appellant secured a decree of divorce from appellee. That part of the decree relating to the settlement of the property rights and the alimony reads as follows: "And it further appearing to the court that there were no children born of said union and that the parties hereto have agreed upon a settlement of the property rights, it is ordered under said agreement that the defendant herein pay to the plaintiff herein by way of alimony the sum of one hundred fifty dollars ($150.00) at this time and one hundred fifty dollars ($150.00) on the first day of each and every month hereafter. * * * The court doth retain control of this cause for such further orders and proceedings as may be necessary to enforce the rights of the parties hereto."

In 1931, appellee filed a petition in the chancery court to modify the above-mentioned decree by striking therefrom the provision relative to the payment of alimony, and that the court determine the amount of delinquent alimony which had accrued and extend the time for paying same upon such terms as the court might deem just and proper under the circumstances. The petition for this purpose was based on the ground that his income as a physician and surgeon had been greatly reduced, both on account of his physical condition and the depressed business conditions generally prevailing throughout the country. A hearing was had on this petition on March 14, 1932, and the court made an order finding that appellee was delinquent in alimony installments as provided in the original decree in the sum of $4,650, and that he thereafter pay appellant $60 per month beginning March 15, and a like sum on or before the fifteenth of each succeeding month until the total amount found to be delinquent had been paid. It was further provided that if he failed to pay as therein provided, the amount to be paid should be increased $60; but if he pay in the manner provided at the time when due, same should constitute full and complete settlement of the claims for alimony provided in the original decree. The order further provided that the original decree should be set aside in so far as future alimony is concerned, save and except that if he fails to make the payments as therein provided then the sum shall be increased $60 per month.

From this decree modifying the original decree as above stated this appeal is prosecuted.

The principal ground urged for a reversal of the judgment is that the court did not have the power to set aside a former decree based on an agreement of the parties. Appellant relies upon the cases of Pryor v. Pryor, 88 Ark. 302, 114 S. W. 700, 129 Am. St. Rep. 102, and Erwin v. Erwin, 179 Ark. 192, 14 S.W.(2d) 1100, and cases therein cited, to support this contention. We cannot agree with appellant that the cases relied upon go to the extent now contended for. It must be remembered that the statute, section 3510, Crawford & Moses' Dig., provides: "The court, upon application of either party, may make such alterations from time to time, as to the allowance of alimony and maintenance, as may be proper, and may order any reasonable sum to be paid for the support of the wife during the pending of her bill for divorce." It has been held by this court that an allowance of alimony is subject to modification by the court to meet changed conditions. Kurtz v. Kurtz, 38 Ark. 119; Pryor v. Pryor, 88 Ark. 302, 114 S. W. 700, 129 Am. St. Rep. 102; McConnell v. McConnell, 98 Ark. 193, 136 S. W. 931,...