Kerr v. Kerr

• Citation: 54 N.W.2d 357,74 S.D. 454
• Decision Date: 14 July 1952
• Docket Number: No. 9265,9265
• Court: Supreme Court of South Dakota
• Parties: KERR v. KERR.

Page 357

54 N.W.2d 357

74 S.D. 454

KERR v. KERR.

No. 9265.

Supreme Court of South Dakota.

July 14, 1952.

E. V. Morrill, Sturgis, Francis J. Parker, Deadwood, for defendant and appellant.

Bangs & McCullen, H. F. Fellows, Rapid City, for plaintiff and respondent.

ROBERTS, Judge.

On January 17, 1947, plaintiff obtained in the circuit court of Pennington county a decree granting her a divorce from the defendant, awarding to her custody of their minor children, and requiring defendant in accordance with the stipulation of the parties to pay the sum of $10 per month for the support of each of the four minor children. On December 22, 1948, the trial court after hearing modified the decree to require monthly payments of $30 for the support of each of the minor children and to provide that such payments 'shall constitute a lien upon all of the property, or property rights, held by the defendant from and after the 6th day of October, 1948.' Defendant has appealed from an order entered on June 1, 1951, further modifying the divorce decree. The pertinent portions thereof read:

'It is hereby ordered, adjudged and decreed that the defendant, Floyd K. Kerr, shall pay to the plaintiff as support money for the minor children of these parties, namely: Shirley Kerr and John Kerr the sum of $60.00 per month for each child, such payments to commence as of June 1, 1951, and such payments to continue until each such child shall attain the age of 18 years; when either child shall attain the age of 18 years, the aforesaid payment for such child shall thereupon cease, or until further order of the Court:

'It is further ordered, adjudged and decreed that defendant, Floyd K. Kerr, shall forthwith pay to Bangs & McCullen and H. F. Fellows, attorneys for plaintiff, the sum of $350.00 as attorneys' fees for their services in connection with the motion for modification of said judgment and the further sum of $600.00 as attorneys' fees for their services in that certain declaratory judgment action in which the defendant, Floyd K. Kerr, and his wife Inga B. Kerr each separately seek to litigate the question of authority of this Court to impress the judgment rendered herein for support money with a lien upon the property of defendant; * * *.

'The Court specifically finds that there has been such a change in the conditions of finance and health of these parties and in the prevailing economic conditions to warrant the aforesaid modification.

'It is further ordered, adjudged and decreed that all the support money payments provided for herein shall continue upon and after the death of said Floyd K. Kerr, defendant, and shall, until provisions of this decree are fully complied with, constitute a valid enforcible lien and claim against the assets of any estate which he may leave.'

Three principal questions are presented. It is insisted that the evidence did not warrant an increase in allowance for support. The second question has to do with allowance of counsel fees. The third question involves the authority of the court to declare the decree for support a lien on the property of the defendant.

It is necessary in order to consider the questions involved to state briefly the facts and the situation of the parties. Under the terms of a property settlement defendant conveyed to the plaintiff a 320 acre tract of land in Meade county. Defendant owned no other property and had only a limited income. Defendant remarried. He shared equally with his present wife in the estate of his father, William Kerr, who died testate in September, 1948. The estate consisted of three residential properties in Rapid City, a hundred acre farm in Mercer county, Illinois, and about $19,000 in bank deposits and securities. On December 7, 1948, defendant conveyed to his second wife all his interest in the estate. The claimed consideration was her agreement to administer the property for his benefit during his lifetime and to make a will devising the property to him. On February 16, 1949, plaintiff instituted a separate action against her former husband and his wife for a declaratory judgment decreeing that payments for support of the minor children constitute a lien on all properties owned by him on and after October 6, 1948. Plaintiff claims that her health has been impaired and that her earnings have substantially diminished. It was upon this record that the trial court entered the order modifying the divorce decree from which defendant has appealed.

The statutes of this state relating to allowance for child support vest the court with discretion to modify and revise such allowance as changed conditions may require. SDC 14.0724, 14.0726; Van Diepen v. Van Diepen, S.D. 43 N.W.2d 499. The court need not conform to the prayer of either a complaint or application, but in exercising its statutory authority may take such action as the situation justifies. Marks v. Marks, 22 S.D. 453, 118 N.W. 694. Defendant in the court below contended that the circumstances of the parties since the modification of the decree on December 22, 1948, had not sufficiently changed to warrant a further modification. The record discloses that there has been a material change in the earning capacity of the plaintiff since the amendatory decree referred to was entered. From her testimony it appears that earnings from keeping roomers and boarders contributed to the maintenance of a home for the minor children, but because of physical ailment she is no longer able to conduct a boarding house. There appears to be no uncertainty concerning the ability of the defendant to pay for the support of his children and the evidence reviewed justified a modification of the decree under the statutory power granted to the court.

It is asserted that the allowance of counsel fee in the amount of $350 in the modification proceedings as to child support is excessive. We understand that defendant has complied with the order as to the payment of such allowance. There is some lack of accord in the decisions as to the effect of the voluntary payment of a judgment, order or decree upon the right to appeal. 4 C.J.S., Appeal and Error, Sec. 214. We think that the voluntary payment of a counsel fee awarded under the decree precludes a review of that portion of the decree.

As to the allowance of fee for the services rendered by attorneys for the divorced wife in the declaratory judgment action counsel argue that disqualification of Judge Rudesill in that action terminated his authority to allow counsel fees and that there was no evidence before the court as to the nature and value of the services for which an allowance was made. They do not urge that a trial court in a divorce action has no power to award reasonable counsel fees to prosecute or defend litigation relating to the support of a child or children of a marriage. Upon the filing of an affidavit of prejudice in the declaratory judgment action, Judge Rudesill was disqualified under the provisions of SDC 33.1209 to proceed further in that action, but the allowance in the divorce action to enable plaintiff to pay for the services of attorneys in the declaratory judgment action did not constitute an assumption of jurisdiction in...