Jones v. Jones

• Decision Date: 17 June 1943
• Docket Number: 6475
• Citation: 104 Utah 275,139 P.2d 222
• Court: Utah Supreme Court
• Parties: JONES v. JONES

139 P.2d 222

104 Utah 275

JONES v. JONES

No. 6475

Supreme Court of Utah

June 17, 1943

Appeal from District Court, Second District, Weber County; Lester A Wade, Judge.

Action for divorce by Fuchsia E. Jones against Percy E. Jones wherein defendant filed a petition to modify alimony provisions of the divorce decree and plaintiff answered the petition seeking increase of alimony payments because of increased age of a child in plaintiff's custody.From an order modifying the decree by increasing the alimony payable to plaintiff for her support, the defendant appeals.

Reversed and remanded.

Clifford L. Ashton, of Salt Lake City, for appellant.

F Henri Henriod and W. L. Skanchy, both of Salt Lake City, for respondent.

WOLFE, Chief Justice.LARSON, MOFFAT, McDONOUGH, JJ., and DALLAS H. YOUNG, District Judge, concur.WADE, J., having been disqualified, did not participate.

OPINION

WOLFE, Chief Justice.

This is an appeal by the defendant from an order of the court which modified an alimony decree previously entered.

The facts show that on August 11, 1938, the plaintiff was granted a divorce from the defendant.In the findings of fact in that divorce proceeding the court found that the parties had entered into a stipulation to govern the property rights of the parties in event the divorce was granted.The stipulation, which was adopted by the court in its findings, provided in part that:

"The defendant Jones shall pay to the plaintiff for the use of herself the sum of $ 30.00 per month and the sum of $ 15.00 per month for each of the two minor children, the custody of whom shall be in the plaintiff; the said sums are to be paid to the Clerk of the above entitled court, $ 30.00 by the 12th day of August, 1938, and $ 30.00 by the 27th day of August, 1938, and thereafter on the same days of each month."

This written stipulation, as incorporated in the findings, constituted the basis for the decree for alimony and for the support of the children.

On August 15, 1939, the defendant filed a petition to modify the alimony decree.He alleged that one of the two minor children had attained her majority by virtue of marriage, and prayed that the alimony be reduced to $ 45 per month.In answer to this petition plaintiff admitted that one child had married, but alleged that the needs of the other child, Lorenzo had materially increased, so that he now needed $ 30 per month.The plaintiff prayed that the petition of the defendant to have the alimony reduced be denied and that the decree be modified so as to require the defendant to pay to the plaintiff for the support of Lorenzo $ 30 each month.

Subsequently, on September 23, 1940, the defendant filed what was designated as a "Supplemental Reply to Plaintiff's Answer," but which was in fact a supplemental petition for a change of the alimony decree.In this supplemental petition, the defendant alleged that the other child, Lorenzo, was gainfully employed and now able to care for his own needs.He prayed for a modification of the alimony decree to relieve him of any liability to the plaintiff for support money for the children and asked that the amount to be paid by him to the plaintiff be thus reduced to the $ 30 which was originally decreed to her for her own use.

After a hearing on these two petitions the court found that the defendant was still earning $ 180 per month (the amount he was earning in 1938 when the divorce was granted); that one of the children had married on August 14, 1939, and the other was self-supporting; and that $ 50 per month was now necessary for the support of the plaintiff.The court then concluded

"that the amount of alimony which the defendant is required to pay plaintiff should be reduced from $ 60.00 per month to $ 50.00 per month, said change commencing August 14, 1939."

In prosecuting this appeal the defendant makes two assignments of error in which he urges: (1) that the court had no jurisdiction to modify the provisions of the alimony decree which was originally based upon a stipulation of the parties; and (2) that if the court did have such jurisdiction, the issues raised by the pleadings did not justify the change in the decree as made by the court.

The question raised by the first contention can no longer be considered an open question in this State.In the recent case of Barraclough v. Barraclough, 100 Utah 196, 111 P.2d 792, 793, this identical point was raised.The parties had entered into a stipulation governing the amount of alimony to be paid.The stipulation was incorporated into the findings and made the basis for the alimony decree.The plaintiff filed a petition to modify the decree.We held, in a Per Curiam opinion, that the court had the power to modify such a decree.In so holding, we stated:

"In a divorce action the trial court...