Lee v. Lee

• Decision Date: 13 June 1938
• Docket Number: 33269
• Court: Mississippi Supreme Court
• Parties: LEE v. LEE

181 So. 912

182 Miss. 684

LEE v. LEE

No. 33269

Supreme Court of Mississippi

June 13, 1938

Division B

Suggestion Of Error Overruled July 21, 1938.

APPEAL from the chancery court of Pike county, HON. R. W. CUTRER Chancellor.

Divorce suit between Mrs. Allie Lee and R. S. Lee, wherein the husband petitioned for modification of alimony decree and wife filed a petition that the husband should be cited for contempt of court. From a decree, the wife appeals. Affirmed.

Affirmed.

Price & McLain, of McComb, for appellant.

The Chancellor could not legally render any decree in favor of the appellee until he first paid in full the defaulted alimony installments.

Cross v. Cross, 127 A.D. 740, 111 N.Y.S. 788; Craig v. Craig, 163 Ill. 176, 45 N.E. 153; Beard v. Beard, 57 Neb. 754, 78 N.W. 255; 19 C. J. 225, pars. 534, 535; Schlom v. Schlom, 115 So. 197, 149 Miss. 111; Amis, Divorce and Separation in Mississippi, sec. 206, page 278.

The decree rendered March 5, 1937, reducing the alimony from $ 45 to $ 25 is void and unauthorized by law.

The petition in the case at bar is not such petition as will sustain a modification decree. It is a nullity, and its nullity is not cured by the evidence. The only legal action the Chancellor could have taken, under the evidence and the petition, was to have dismissed said petition.

Clark v. Clark, 98 So. 157, 133 Miss. 744.

The decree, if legal, is unauthorized by the reason the record shows that the financial status of the parties had not changed materially or substantially since the court modified the original decree by a decree rendered May 4, 1935.

This court has repeatedly held that a chancery court has no authority to change a final decree allowing permanent alimony, except upon proof of some material and substantial change in the conditions and circumstances of the parties.

Malone v. Malone, 131 So. 871, 159 Miss. 138; Primrose v. Primrose, 97 So. 418; Clark v. Clark, 98 So. 157, 133 Miss. 744; Amis, Divorce and Separation in Mississippi, sec. 206, pages 277-278.

The remarriage of R. S. Lee, and his increased expenditures caused thereby, is no ground for reducing alimony.

19 C. J. 276, sec. 627.

From the record the sum of $ 25 per month alimony, decreed to appellant under the decree rendered March 5, 1937, is grossly inadequate.

Primrose v. Primrose, 97 So. 418.

L. H. McGehee and Roach & Jones, all of McComb, for appellee.

This court has repeatedly held that where there is a material change of conditions and circumstances, that Section 1421 of the Code of 1930 gives the court, in a proper proceeding, the power to alter or modify its former decree with reference to alimony and the custody of children.

Campbell v. Lovgren, 166 So. 365, 175 Miss. 4; Aldrich v. Aldrich, 166 Mich. 248, 131 N.W. 642; Aldrich v. Aldrich, 237 Mich. 695, 206 N.W. 482; Kenney v. Kenney, 231 S.W. 267; Boniface v. Boniface, 17 S.W.2d 897; Lamborn v. Lamborn, 80 Cal.App. 494, 251 P. 943.

There has been a material change of circumstance between the date of the decree of May 4, 1935, and the date of the decree here appealed from. Whether or not there has been a material change of circumstances is a question of fact for the trial court and like any other question of fact, when it has been decided by the trial court, it cannot be set aside by this court if there is any reasonable evidence upon which to sustain it.

Barry v. Maddocks, 156 Miss. 424, 125 So. 554.

All that was necessary for appellee to have alleged in his petition was that there had been a material change in circumstance between the decree of May 4, 1935, and the date of the filing of the petition, and pray for a modification of the decree of May 4, 1935. The appellee, in his petition, however, not only so alleged and prayed for the reduction of alimony, but he set out the entire history of this case, such allegations, of course, are mere surplusage and in no manner affect the other allegations of the petition.

The appellant contends that the Chancellor could not legally render any decree in favor of the appellee until he first paid in full the defaulted alimony installments. The case of Schlom v. Schlom, 115 So. 197, 149 Miss. 111, presents a complete answer to the contention of the appellant.

The facts of this case are exactly the same as in the Schlom case. Up until the time that he filed his petition asking for a modification the appellee continued to abide by the decree of May 4, 1935, in full. It was not until after he filed his petition asking for a modification that he began to pay the appellant the sum of $ 25 per month. If the appellee had arbitrarily reduced the alimony payments without filing any petition asking for relief there might be some merit in appellant's contention, but here, as in the Schlom case, he promptly filed his petition and made no reduction until after his petition was filed.

If a material change in circumstances existed, under authority of Campbell v. Lovgren, 175 Miss. 4, the court had the authority to refuse the appellant any alimony at all, and if it had the authority to do that, it of course had the authority to reduce the alimony to $ 25 per month. We submit, however, that taking all of the facts into consideration $ 25 per month alimony to the appellant is not insufficient.

OPINION

Anderson, J.

On May 1, 1934, the appellee was granted a divorce from appellant his wife. The decree provided, among other...