Kiesow v. Kiesow, 39385

• Decision Date: 05 March 1965
• Docket Number: No. 39385,39385
• Citation: Kiesow v. Kiesow, 133 N.W.2d 652, 270 Minn. 374 (Minn. 1965)
• Parties: Anna Mae KIESOW, Respondent, v. Theodore C. KIESOW, Appellant.
• Court: Minnesota Supreme Court

Page 652

133 N.W.2d 652

270 Minn. 374

Anna Mae KIESOW, Respondent, v. Theodore C. KIESOW, Appellant.

No. 39385.

Supreme Court of Minnesota.

March 5, 1965.

Syllabus by the Court

1. Divorce jurisdiction is statutory, and the district court has no power not delegated to it by statute.

2. The trial court's authority to amend a divorce decree with respect to alimony or support money is found in Minn.St. 518.64.

3. In an order to modify a divorce decree with respect to alimony or support money there must be a showing of a change in circumstances since the decree was entered. A petition to modify a divorce decree is addressed to the sound discretion of the court and its decision will not be reversed on appeal unless there is an abuse of discretion. However, the court's authority to amend a divorce decree does have some limitations.

4. An order denying a motion to increase or reduce alimony or support money or granting it is an appealable order, which becomes final upon the expiration of the time for appeal. Facts litigated on such motion and determined therein, after a hearing, are not open to relitigation on a subsequent motion, at least in the absence of fraud or some exceptional circumstance.

5. A change in circumstances that will justify modification of a divorce decree respecting support for children may involve a variety of factors and is not limited to a consideration only of the increased income of the parties.

6. The authority of the court to require payment of maintenance for children is now found in § 518.57, which permits the court to order maintenance for minor children or for a child as defined in the act. 'Child' as so defined includes an individual under 21 years of age or an individual who, by reason of his physical or mental condition, is unable to support himself. There being no proof of any physical or mental deficiency as to any of the children involved in this case, the court was limited to requiring maintenance for them only until they attained their majority.

7. Even though the first two of three successive motions to amend a divorce decree did not request any change in alimony, the facts upon which either an increase in alimony or support money must be based are the same, and those facts, having been determined by two prior motions, govern the determination of the last motion.

8. A division of real property under a divorce decree is final under § 518.64 and cannot thereafter be changed by the trial court when the time for appeal has gone by.

9. Where one of two lots was covered by a divorce decree and the other was not mentioned, but the court on two successive motions refused to grant plaintiff the relief she requested with respect to the omitted lot, a determination contrary to the prior determinations cannot be permitted to stand.

10. While it is better practice to make findings of fact upon a motion of this kind so that this court on appeal may know the basis for the court's action, it is probably not required under Rule 52.01 of Rules of Civil Procedure. Failure to make findings of fact in this case would not justify a reversal.

11. The allowance of attorneys' fees on a motion to amend a divorce decree is a matter resting almost entirely in the discretion of the trial court. There is no such abuse of discretion here as to justify interference with the trial court's action.

Friedman & Friedman, Duluth, for appellant.

Kempe & Murphy, West St. Paul, for respondent.

KNUTSON, Chief Justice.

This is an appeal from an order of the District Court of Dakota County amending a decree for divorce with respect to the amount of alimony and support money required of defendant and with respect to the title to some real estate.

Plaintiff and defendant were married on July 25, 1933. Five children were born as issue of this marriage, namely, Joan Margaret, born May 30, 1936; Carol Ann, born February 15, 1938; William Charles, born December 18, 1943; Marilyn Joyce, born February 15, 1946; and Jean Marie, born October 18, 1950.

On July 16, 1954, plaintiff-wife filed suit for divorce against defendant. Defendant answered and cross-claimed for divorce. The parties thereafter entered into a stipulation for settlement of property rights, custody of the children, and support and alimony. Based thereon, the answer and cross-claim were withdrawn, and on January 30, 1956, a default divorce decree was entered pursuant to the order of the Honorable William C. Christianson. The decree provided that plaintiff should have custody of the children and that defendant was to pay the sum of $185 per month for support of the children, to 'continue until the children attain their majority or pending further order of the Court.' Defendant was required to pay the sum of $50 per month as alimony, and plaintiff was awarded the furniture and household furnishings of the parties and the right to use the legal residence of the parties, which was described as lot 26 of block 33, Spring Park, Dakota County.

During their marriage, the parties had acquired two lots described as lots 25 and 26 of block 33, Spring Park, Dakota County. Lot 26 was held by them as joint tenants. The title to lot 25 was in defendant. With respect to the homestead, the decree provided:

'* * * plaintiff shall have the exclusive use, possession and enjoyment of the said premises to the exclusion of the defendant; that if the defendant predeceases the plaintiff, then and in that event his interest shall pass to and become the property of the children in equal shares. Neither plaintiff nor defendant, during their lifetime, shall have the right to transfer or dispose of his or her interest in such property nor to commence any action in partition because of the ownership of such interest in said property.'

Even though it later appeared that part of the sidewalk used as entrance to the homestead and part of a driveway is located upon lot 25, no mention of lot 25 is made in the stipulation or divorce decree.

In addition to the above, defendant was required to maintain in full force and effect an insurance policy or policies upon his life in the face value of $6,000, in which the children of the parties were the principal beneficiaries, until such time as the youngest child attained her majority, and he was also required to maintain Blue Cross and Blue Shield hospital and medical contracts for the benefit of the children.

In October 1957 one of the children had become emancipated by marriage. Defendant thereupon moved to reduce the monthly support payments. Thereupon plaintiff moved to amend the divorce decree by increasing the support payments for the children to $210 per month and by adding lot 25 to lot 26 in the original decree and requiring defendant to pay one-half of the real estate taxes and assessments thereon. Affidavits were submitted by both parties in support of their respective motions, plaintiff alleging that defendant's income and salary had increased substantially and he disputing this claim. Plaintiff admitted that her oldest child was married and no longer at home. She alleged that she had been assessed.$237.30 for street repairs and that her real estate taxes had been substantially increased for the year 1957. Judge Christianson, who had originally heard the case and issued the divorce decree, heard these motions and on June 12, 1958, issued two orders, one denying plaintiff's motion and the other granting defendant's motion by reducing the support for the children from $185 to $148, which represented a proportionate reduction based on the emancipation of the one child. He allowed plaintiff $60 attorneys' fees. In his memorandum denying plaintiff's motion, the judge, among other things, said:

'* * * In light of all the circumstances coming to the court's attention, it seems that the provisions made for the support of the wife and the children, and the provisions made with respect to the division of property, were fair, equitable and just in view of the income and the circumstances of the husband. No such change has taken place in the circumstances of the plaintiff or the defendant as to justify the increase she seeks in the support of her four minor children now living with her. Nor, in view of all the circumstances, is there adequate justification for requiring the defendant to pay one-half of all taxes and assessments which will become due against the house where plaintiff resides with the children. It must be remembered that there has been no substantial increase in the income of defendant since the divorce. The wife, however, has one child less at home for which she must provide support out of what she receives from her husband. In view of this, the court feels that it is well justified in reducing by one-fifth, or $37.00, the amount to be paid by the husband each month as support for such children.'

About 4 years later, on June 6, 1962, plaintiff again obtained an order to show cause why a motion should not be granted amending the divorce decree. In that motion she again asked to have lot 25 added to lot 26 and that the title be given to her free and clear of any claim on the part of defendant. She asked to have the support of the children increased to $15 per week per child.

The motion came on for hearing before the Honorable R. C. Nelsen. In addition to the affidavits of the parties, a full hearing was had in which testimony was offered and received. Thereafter, on September 28, 1962, Judge Nelsen made an order amending the divorce decree by requiring defendant to pay the cost of tuition and books for a college education for William Charles, one of the children of the parties. His order is silent as to the balance of the motion and did not allow fees and costs to plaintiff for the reason, as stated in a memorandum, that 'it seems to the Court that it is possible that the payment of the foregoing might have been voluntarily arranged without any amendment of the decree.'

Judge Nelsen came to an untimely...