Johnson v. Johnson, Civil 3607

• Decision Date: 30 December 1935
• Docket Number: Civil 3607
• Citation: 46 Ariz. 535,52 P.2d 1162
• Parties: THOMAS P. JOHNSON, Appellant, v. JULIA S. JOHNSON, Appellee
• Court: Arizona Supreme Court

52 P.2d 1162

46 Ariz. 535

THOMAS P. JOHNSON, Appellant, v. JULIA S. JOHNSON, Appellee

Civil No. 3607

Supreme Court of Arizona

December 30, 1935

APPEAL from a judgment of the Superior Court of the Courty of Maricopa. Fred W. Fickett, Judge. Judgment reversed and cause remanded.

Mr James E. Nelson, for Appellant.

Mr. L J. Cox, for Appellee.

OPINION

McALISTER, J.

The marriage existing between Julia S. Johnson and Thomas P Johnson was dissolved in September, 1928, and the the decree awarded the custody of their two minor children to the plaintiff and directed the defendant to pay her forty dollars per month alimony and fifty dollars a month for the support of the two children.

Upon the petition of the defendant this decree was modified on June 28, 1929, by granting the custody of the two minors to the defendant and by directing him to pay plaintiff alimony in the sum of fifty dollars per month in semi-monthly installments.

Three years later, or on June 16, 1932, the defendant filed a petition for a further modification of the decree and it was heard on July 7, 1932. At the close of the hearing the court took the matter under advisement and on April 24, 1933, made an order modifying the decree by reducing the alimony from fifty to twenty dollars a month and by "relieving defendant of all alimony to the date hereof." The effect of this was to excuse defendant from paying the fifty dollars a month from the day the petition to modify was filed on June 16, 1932, until the making of the order of modification on April 24, 1933.

Some fifteen months later, or on August 9, 1934, the plaintiff filed a motion to strike from the order of April 24, 1933, the words, "relieving defendant of all alimony to the date hereof," and on November 1, 1934, this motion was granted. It is the order giving plaintiff this relief that the defendant has brought here for review.

The only assignment is that the court erred in striking from that order the words, "relieving defendant from all alimony to the date hereof." It was entered upon the theory that the order of June 28, 1929, directing the payment of fifty dollars a month was still in force and, therefore, the court had no jurisdiction on April 24, 1933, to relieve defendant from paying alimony that had accrued up to that time and was unpaid. The ground upon which this view rested is that the installments vested each month as they became due and the court's power to change them in any way after that no longer existed. In support of this plaintiff cites Adair v. Superior Court in and for Maricopa County, 44 Ariz. 139, 33 P.2d 995, 996, 94 A.L.R. 328, in which the court used this language:

"Installments of alimony become vested the moment they are due and the court has no power to modify the decree as to them. The rights and liabilities of the parties in such instances become irrevocably fixed on the dates the decree provides they shall be paid, and the inevitable effect, of this is that the power to 'amend, change or alter' a provision of the decree requiring the care, custody or maintenance of the children has no reference to installments that are past due and unpaid."

The application of this language to the order of April 24, 1933, invalidates that portion of it excusing the defendant from paying the alimony which accrued up to that time and was unpaid if the filing of the petition to modify it had no effect on the court's jurisdiction over it. The power given under section 2188, Revised Code of 1928, however, to "amend, revise and alter" that portion of a divorce decree relating to the payment of alimony is full and complete and necessarily confers upon the court authority to do what in its judgment the evidence warrants, that is, increase, decrease, continue unchanged or deny it altogether from that time forward. It could not, of course, change in any way the amount of alimony that had already accrued, but the fact that the filing of the petition gave it full power over future payments means that its jurisdiction over them was neither lost nor abridged by taking the matter under advisement for the purpose of determining what change, if any, should really be made. The court's power over installments accruing after the filing of the petition was the same following their due date that it was prior thereto, and even if defendant had paid them as they became due, its power to make what in its judgment was a proper order was in no way lessened. Hence, the fact that it did not decide the matter until April 24, 1933, in no sense deprived it of jurisdiction to make an order carrying into effect its conclusion that the facts introduced at the hearing in July, 1932, called for a change in alimony from and after the filing of the petition on June 16, 1932. If the court had felt at the time of the hearing that the filing of the petition did not prevent future installments from vesting, except conditionally, it would undoubtedly have entered a temporary order relieving him from paying them until the matter should be decided, because it is clear that the defendant by filing his petition did all within his power to obtain relief from and after June 16, 1932, and he should not be held responsible for the court's delay in deciding the matter. It was something entirely beyond his control.

The only decision on the question involved here to which our attention has been called is Keck v. Keck, 219 Cal. 316, 26 P.2d 300, 302, and it should be stated that the trial court did not have the benefit of it in entering its order. It appears that on September 3, 1930, Arthur W Keck was cited for contempt of court for failing to make the payments of $100 per month due Lizzie B. Keck under an order for alimony pendente lite, and a hearing on that citation was held May 11, 1932. Some fourteen months before that, however, that is, on March 16, 1931, an interlocutory decree of divorce in favor of Lizzie B. Keck on her cross-complaint had been entered and an award of $100 a month for her...