Lewis v. Lewis

• Decision Date: 12 July 1939
• Docket Number: 7896.
• Citation: 94 P.2d 211,109 Mont. 42
• Parties: LEWIS v. LEWIS.
• Court: Montana Supreme Court

94 P.2d 211

109 Mont. 42

LEWIS v. LEWIS.

No. 7896.

Supreme Court of Montana

July 12, 1939

Rehearing Denied Oct. 9, 1939.

Appeal from District Court, Ninth District, Pondera County; R. M Hattersley, Judge.

Divorce action by Leah H. Lewis against Fredrick F. Lewis, wherein defendant filed a cross-complaint.From an adverse decree defendant appeals.

Decree modified and, as modified, affirmed, and cause remanded, with directions.

STEWART J., dissenting in part.

Speer & Hoffman and G. G. Harris, all of Great Falls, for appellant.

D. W. Doyle, of Conrad, and Art Jardine, of Great Falls, for respondent.

JOHNSON Chief Justice.

Defendant appeals from a decree of divorce awarded plaintiff against him and assigns error to the court's action in the following respects: First, in granting plaintiff the divorce; second, in awarding plaintiff what defendant contends is excessive alimony and in making it a prior lien on his real estate; and, third, in finding that plaintiff is the owner of the family residence, which stands in her name, and of the household goods, furniture and other personal effects, and in denying him judgment that the residence belonged to him.We shall discuss these three specifications in the above order.

Both the plaintiff and the defendant sought a divorce on the statutory ground of extreme cruelty.It is unnecessary to comment upon this issue further than to say that the record unquestionably contains sufficient credible evidence to sustain the decree in that respect, and that this court cannot, therefore, disturb the trial judge's finding that the plaintiff was entitled to a divorce from the defendant.SeeBischoff v. Bischoff,70 Mont. 503, 226 P. 508.

We thus pass to the question of alimony.The court's finding on that matter is as follows: "Eighth.That defendant is an able-bodied man capable of earning and actually earning in excess of $100.00 per month, and in addition thereto, receives the rents, issues and profits of the real property hereinbefore described.That the sum of $100.00 per month is necessary to provide for the support and maintenance of plaintiff herein."

The provisions of the decree as to alimony are as follows: "It is further ordered, adjudged and decreed that said defendant pay to plaintiff the sum of $9,600.00 for the support and maintenance of plaintiff, which sum is to be paid in monthly installments in the amount of $100.00 a month, commencing on the 5th day of July, 1938, and continuing on the 5th day of each and every month thereafter until and including June 5, 1946, and that said sum of $9,600.00 is hereby made a lien upon all the right, title and interest of the defendant of, in and to all of the real property hereinbefore specifically described, and

"It is further ordered, adjudged and decreed that the said defendant continue to pay the sum of $100.00 per month to plaintiff monthly commencing July 5, 1946, and thereafter until further order of this court,

It is further ordered that nothing herein contained shall be construed as discontinuing the payments of $100.00 per month herein ordered at the end of eight years from July 5, 1938, but that such payments shall be continued to be made by the defendant to the plaintiff until the further order of the court."

Before determining whether the alimony allowance is excessive, we will consider the question whether the court erred in making the alimony a prior lien on defendant's real estate or in its method of doing so; but we must first arrive at the meaning of the provision.

It is well settled that where a wife is given a divorce, the awarding of alimony is largely a matter of discretion in the district court, and that it is to be based, not upon a certain proportion of the husband's income or property, but is to be determined by the equities of the case and the financial condition of the parties.Cummins v. Cummins,59 Mont. 225, 195 P. 1031;Wandel v. Wandel,76 Mont. 160, 248 P. 864;Nuhn v. Nuhn,97 Mont. 596, 37 P.2d 571.

Since the means of the husband and the needs of the wife, with due regard to all the circumstances, determine the equities in respect to alimony, and since the circumstances are naturally subject to change, the trial court is wisely given the authority, after judgment, to modify its alimony order from time to time.Sec. 5771, Rev. Codes.

Thus, while alimony in gross is authorized by the statute(Nuhn v. Nuhnsupra), the better practice is to provide a monthly or other periodical allowance unless its payment would be endangered by reason of the husband's lack of industry or financial ability (Bristol v. Bristol,65 Mont. 508, 211 P. 205), or for some other compelling reason.Furthermore, if that danger can be obviated by requiring security, as provided by section 5772, Revised Codes, there are at least two reasons why a lump sum should ordinarily not be awarded.The first is that by so doing the court awards a definite judgment which, while intended primarily for the wife's support, is fixed without reference to her continuing need, so that she or her estate will have the benefit of it in spite of her remarriage, her acquisition of other property or income, or her death.The second is, assuming that by this award the court does not exhaust its power but can hereafter award further alimony by way of monthly or lump sum payments (seeBast v. Bast,68 Mont. 69, 217 P. 345), and thus reserves the right to increase the alimony provision, it does, by an award in gross, to that extent deprive itself of the power to reduce the provision.Obviously, the court should, so far as possible, retain its power to modify the alimony provision either way, as circumstances warrant, in the interest of justice to both parties.It follows, therefore, that if monthly alimony can be secured in some way, a lump sum should not be awarded.

The provision for $9,600, while stated as a judgment for that amount, cannot properly be designated as lump sum alimony, since it is not payable in a lump sum.Nor can it be regarded as a property settlement, since it was otherwise designated, and since it was apparently awarded without reference to the husband's debts (agreed to be $112,386.38, as against assets of $70,640.65), which should be considered and deducted from his income or property in determining alimony.Nuhn v. Nuhn, supra.

The only other apparent explanation is that it really was intended to constitute monthly alimony of $100 throughout, but was stated in the definite sum of $9,600 (though payable in monthly installments over a period of eight years), so as to provide security for a definite amount or period.This is confirmed by the further provision that "nothing herein contained shall be construed as discontinuing the payments of $100.00 per month herein ordered at the end of eight years from July 5, 1938, but that such payments shall be continued to be made by the defendant to the plaintiff until the further order of the court."Obviously, the payments after eight years cannot be considered as alimony to begin eight years after the decree; nor can the payments within the eight-year period be construed as partial payments of a $9,600 judgment.The question is whether the method used was the proper one by which to provide security for payment of alimony.

This court held in Raymond v. Blancgrass,36 Mont. 449, 93 P. 648, 15 L.R.A.,N.S., 976, that decrees in equity are judgments and are enforceable by execution like judgments in legal actions, and that, when properly docketed, they become liens upon the debtor's real estate.However, it would seem that the lien would be for only the accrued and unpaid installments, and not for such installments as might thereafter accrue.

Section 5772, Revised Codes, provides: "The court or judge may require the husband to give reasonable security for providing maintenance or making any payments required under the provisions of this chapter, and...