Jones v. Jones

• Decision Date: 22 November 1940
• Citation: 284 Ky. 511
• Parties: Jones v. Jones.
• Court: United States State Supreme Court — District of Kentucky

Page 511

284 Ky. 511

Jones v. Jones.

Court of Appeals of Kentucky.

November 22, 1940.

1. Divorce. — In divorce proceedings, a judgment granting plaintiff permanent custody of unmarried minor child, and adjudging that defendant pay plaintiff a certain amount per month as alimony and maintenance for plaintiff and child until further order of trial court, was not a "nunc pro tunc judgment" with regard to alimony, where judgment did not relate back to date on which plaintiff was granted divorce from defendant or cover intervening period.

2. Divorce. — Where original judgment on June 12, 1937, granted plaintiff a divorce from defendant but was silent as to alimony, and plaintiff did not move for reconsideration of judgment during term in which it was rendered, trial court could not grant plaintiff alimony under a judgment entered May 8, 1939, awarding plaintiff permanent custody of an unmarried minor child, and which judgment did not relate back to date on which divorce was granted, since original judgment was tantamount to a "denial" of plaintiff's prayer for alimony and trial court's jurisdiction to reconsider denial was lost.

3. Divorce. — Where plaintiff was entitled to alimony on showing made in original divorce action, but judgment granting plaintiff a divorce was silent as to alimony, only remedy by which plaintiff might obtain alimony after expiration of term at which judgment was rendered was by appeal to Court of Appeals, or by action for a new trial upon statutory grounds (Civil Code of Practice, sec. 518).

4. Divorce. — The rule that provisions relating to alimony in an original judgment in a divorce suit are subject to modification after expiration of term at which judgment was rendered presupposes the granting of alimony in first instance and only relates to subsequent modifications of that grant where its amount is not controlled by contract between parties, or irrevocably fixed by nature of grant, and rule has no application where original judgment denies wife alimony, whether denial is in specific language or consists of a failure to award it.

5. Divorce. — Where original judgment on June 12, 1937, granted plaintiff a divorce from defendant and gave plaintiff custody of minor children with a monthly amount for children's maintenance, and defendant's motion to redocket action to reduce maintenance and award defendant custody of one child was sustained on February 7, 1938, chancellor could thereafter increase allowance to plaintiff for maintenance of unmarried minor child whose permanent custody was granted to plaintiff (Ky. Stats., sec. 2123).

6. Divorce. — Where trial court's only error in judgment awarding permanent custody of unmarried minor child to plaintiff, who had

been previously granted a divorce from defendant, consisted of improperly designating an award for child's maintenance as alimony and maintenance for plaintiff and child, and affidavit filed in Court of Appeals by defendant, who had appealed, showed that plaintiff had died after judgment was rendered, judgment would not be disturbed by reviewing court.

7. Divorce. — In divorce proceedings, the matter of which parent shall be awarded custody of a minor child is for chancellor's discretion in first instance.

Appeal from Boyd Circuit Court.

Mont Walker for appellant.

A.W. Mann for appellee.

Before Watt M. Prichard, Judge.

OPINION OF THE COURT BY JUDGE TILFORD.

Affirming.

On June 12, 1937, the appellee was granted an absolute divorce from the appellant, and given the custody of their two daughters. The judgment awarded her $45 per month for their maintenance but was silent as to alimony.

On January 27, 1938, the appellant moved the Court to re-docket the action, to reduce the maintenance for the children, and to award him the custody of Octavia Viola, the youngest. In his affidavit supporting the motion, appellant alleged that the eldest, Mary Elizabeth, had married since the judgment was entered, and that appellee was neglecting Octavia Viola's education and not rearing her properly. Countering this move, the appellee, on February 5, 1938, moved to dismiss appellant's motion because he was in arrears in his payments, and "because the judgment as prepared and entered herein, over protest of plaintiff's counsel, does not represent the findings of the Court and is not in accordance with law, in that said judgment does not in definite terms provide alimony for the plaintiff, to which she was entitled, she being granted the divorce herein upon her petition and prayer for divorce and...