Humbird v. Humbird

• Decision Date: 29 January 1926
• Citation: 243 P. 827,42 Idaho 29
• Parties: J. A. HUMBIRD, Appellant, v. DOROTHY HUMBIRD, Respondent-Appellant
• Court: Idaho Supreme Court

243 P. 827

42 Idaho 29

J. A. HUMBIRD, Appellant, v. DOROTHY HUMBIRD, Respondent-Appellant

Supreme Court of Idaho

January 29, 1926

DIVORCE-ALIMONY FOR SUPPORT OF WIFE AND CHILD-ALLOWANCE MAY BE CHANGED.

1. Where a divorce is granted for the offense of the husband the court has power at any time under C. S., sec. 4644, to modify the decree as to the amount awarded for the maintenance of the children of the marriage or the allowance to the wife for her support, as it may deem just, having regard to the circumstances of the parties respectively.

2. Where a divorce has been granted for the offense of the husband and an award has been made for the maintenance of the minor child of the marriage and the support of the wife, in a subsequent proceeding to increase such award where both parties appeal from the judgment modifying the original decree, this court will examine the record and direct such further modification as it may deem just, having regard to the circumstances of the parties respectively.

APPEAL from the District Court of the Eighth Judicial District, for Bonner County. Hon. Herman H. Taylor, Judge.

Application to modify decree of divorce as to allowance for maintenance of minor child and for support of wife. From judgment of modification both parties appeal. Cause remanded with instructions to modify judgment.

Cause remanded, with instructions. Respondent to recover costs of this appeal. Petition for rehearing denied.

John P Gray, W. C. McEachern and Robert H. Elder, for Appellant.

The court at any time may modify the original decree providing for the support and maintenance of the wife and children where the divorce has been granted for the offense of the husband. (C. S., secs. 4643, 4644; Ex parte Spencer, 83 Cal 460, 17 Am. St. 266, 23 P. 396; Cole v. Cole, 142 Ill. 19, 34 Am. St. 56, 31 N.E. 109, 19 L. R. A. 811; Pryor v. Pryor, 88 Ark. 302, 129 Am. St. 102, 114 S.W. 700; Kelly v. Kelly, 194 Mich. 94, 160 N.W 397; Warren v. Warren, 114 Minn. 389, 131 N.W. 379; Read v. Read, 28 Utah 297, 78 P. 675; Brandt v. Brandt, 40 Ore. 477, 67 P. 508.)

The trial court erred in failing to allow to the defendant and appellant a reasonable sum for the maintenance and support of the defendant and her minor child. Such an allowance should be made as would correspond with her social position and the position of her husband, and at least maintain her in the style and condition that her husband's fortune would have reasonably justified her maintaining but for his infidelity. (Ex parte Spencer, supra; Griffin v. Griffin, 18 Utah 98, 55 P. 84; Razor v. Razor, 149 Ill. 621, 36 N.E. 963; Andreas v. Andreas, 88 N.J. Eq. 130, 102 A. 259; Muir v. Muir (Ky.), 92 S.W. 314; Thomas v. Thomas, 41 Wis. 429; Campbell v. Campbell, 37 Wis. 206; Richmond v. Richmond, 2 N.J. Eq. 90.)

The court may alter and revise the judgment awarding alimony to meet changed conditions. (Searles v. Searles, 140 Minn. 385, 168 N.W. 133; State v. Brown, 31 Wash. 397, 72 P. 86, 62 L. R. A. 974; Staton v. Staton, 164 Ky. 688, 176 S.W. 21, L. R. A. 1915F, 820; Smith v. Smith, 139 Mich. 133, 102 N.W. 631.)

James E. Babb and E. W. Wheelan, for Respondent J. A. Humbird.

The estate of the husband which is taken into consideration in fixing the amount of alimony is usually the estate which he owned at the time of divorce. (19 C. J. 254; C. S., sec. 4646.)

Statutes permitting modification of the allowance of alimony do not apply to a decree awarding an allowance in gross on making final division or distribution of the husband's estate. (19 C. J. 272, citing Cody v. Cody, 47 Utah 456, 154 P. 952; Zentzis v. Zentzis, 163 Wis. 342, 158 N.W. 284.)

Remarriage of a husband is no ground for increasing the allowance to the divorced wife. The rights of the second wife must be taken into consideration and protected. (Herrett v. Herrett, 80 Wash. 474, 141 P. 1158.)

The income earned by the plaintiff, and the accumulations therefrom and from his separate property, are all the community property of the plaintiff and his second wife. (C. S., sec. 4660.)

The interest of the present wife of the plaintiff in the community property of herself and plaintiff is vested. (Kohny v. Dunbar, 21 Idaho 258, Ann. Cas. 1913D, 492, 121 P. 544, 39 L. R. A., N. S., 1107; Ewald v. Hufton, 31 Idaho 373, 173 P. 247; Peterson v. Peterson, 35 Idaho 470, 207 P. 425; Muir v. City of Pocatello, 36 Idaho 532, 212 P. 345; Swinehart v. Turner, 38 Idaho 602, 224 P. 74; Beals v. Ares, 25 N.M. 459, 185 P. 780; La Tourette v. La Tourette, 15 Ariz. 200, Ann. Cas. 1915B, 70, 137 P. 426; In re Williams, 40 Nev. 241, 161 P. 741, L. R. A. 1917C, 602; Warburton v. White, 176 U.S. 484, 20 S.Ct. 404, 44 L.Ed. 555; Arnett v. Reade, 220 U.S. 311, 31 S.Ct. 425, 55 L.Ed. 477; Blum v. Wardell, 270 F. 309; Wardell v. Blum, 276 F. 226.)

The law regulating the rights of husband and wife to community property is not limited to cases where the community is dissolved by death or by divorce proceedings. (Peterson v. Peterson, supra.)

FEATHERSTONE, District Judge. William A. Lee, C. J., and Wm. E. Lee, Budge and Givens, JJ., concur.

OPINION

FEATHERSTONE, District Judge.

Dorothy Humbird, hereinafter called respondent, and J. A. Humbird, hereinafter called appellant, were married March 15, 1914. January 15, 1915, their daughter, Dorothy Jane Humbird, was born. April 15, 1915, respondent left their home in Sandpoint, Idaho, and went to the home of her parents in Spokane, Washington. April 17, 1917, appellant filed his complaint against respondent, in the district court of Bonner county, asking for a divorce on the grounds of desertion. On July 19, 1917, respondent appeared in said action and filed an answer denying the charge of desertion and a cross-complaint charging appellant with extreme cruelty. The cause was brought on for trial at the request of appellant's attorney while appellant was in France, and on August 21, 1918, a decision was rendered in favor of respondent and against appellant. The court made its findings of fact and conclusions of law and found appellant guilty of extreme cruelty and inhuman treatment and that respondent was justified in leaving the home of appellant in Sandpoint, Idaho, and that she did not desert and abandon appellant, but that the leaving of said home was caused by his cruel acts against her.

Decree of divorce was granted respondent which was filed August 22, 1918, and by such decree she was granted custody of the child, Dorothy Jane Humbird, and appellant was ordered to pay respondent the sum of $ 5,175 forthwith and the sum of $ 60 per month beginning August 1, 1918, for her maintenance and support, and the additional sum of $ 30 per month beginning August 1, 1918, for the support and maintenance of the child.

The decree also contains the following provision:

"It is further ordered, adjudged and decreed that the power and authority be and is hereby reserved in the court to hereafter and at any time further inquire into the property of plaintiff or the earning ability of plaintiff as his health and property interests may change, for the purpose of modifying as to monthly payments of alimony to defendant and cross-complainant and the payments to defendant for the care and maintenance of the said infant child, of plaintiff and defendant, Dorothy Jane Humbird."

November 17, 1924, respondent filed in this cause an application for modification of the decree awarding alimony, and alleged she had expended all the money paid to her by the appellant under the provisions of said decree; that she was not able to support herself on the sum of $ 60 per month and was not able to support the minor child, Dorothy Jane Humbird, on the sum of $ 30 per month; that she had no funds to meet the necessary expenses of maintaining herself and child and was compelled to depend on the charity of friends and relatives for support; that the child was then ten years old and attending school; and that the sum of $ 500 per month was necessary for the support and maintenance of herself and child.

This application for modification of the decree was heard December 8, 1924, and January 7, 1925, the court made and entered its findings.

The court found that respondent had expended all the money that had been paid to her under the decree; that $ 1,478.24 had been expended for physicians, surgeons, hospital and medical attention for the child, and $ 826.50 for medical and surgical attention for herself; that respondent was not able to support herself on $ 60 per month and was not able to support the child on $ 30 per month and that she was without the necessary funds or money to pay the expenses of supporting herself and minor child.

The court further found that at the time the original decree was entered, appellant was in the army and was receiving only $ 166 per month, but was capable of earning much more; that he was now receiving a salary of $ 10,000 per year, and had been receiving such salary since January 1, 1924; that he was the grandchild and one of the residuary legatees under the will of John A. Humbird, deceased. The court further found that there had been a change in the circumstances of appellant and respondent, and their minor child, justifying and warranting modification of the allowance made in the former decree herein and found that respondent should be awarded $ 100 per month for her support and maintenance and the further sum of $ 80 per month for the support and maintenance of the minor child.

The court thereafter entered an order, judgment and decree modifying the former decree and directing appellant to pay to respondent $ 100 per month for her own support and $ 80 per month for the support of the minor child, and from this judgment and decree both parties appeal. We shall...