Marks v. Marks

• Decision Date: 25 November 1908
• Citation: 118 N.W. 694,22 S.D. 453
• Parties: MARKS v. MARKS.
• Court: South Dakota Supreme Court

118 N.W. 694

22 S.D. 453

MARKS v. MARKS.

Supreme Court of South Dakota

November 25, 1908

Appeal from Circuit Court, Deuel County.

Action by Clara A. Marks against Henry M. Marks. From an order modifying a judgment decreeing a divorce for plaintiff defendant appeals. Affirmed.

C. H Bartelt and Joe Kirby, for appellant.

E. H Berg, for respondent.

CORSON J.

This is an appeal by the defendant from an order modifying the judgment of the circuit court of Deuel county decreeing a divorce in favor of the plaintiff and against the defendant.

It is disclosed by the record that on November 11, 1905, the plaintiff obtained a decree of divorce from the defendant but that no alimony was claimed in the complaint or provided for in the decree. On July 25, 1907, the plaintiff presented to the circuit court a petition supported by affidavits praying that the court might modify said judgment "so as to provide for the payment to her by defendant of a certain amount for her support and maintenance and for a certain amount for the support and maintenance and education of said minor child, Harold E. Marks, who was by said decree awarded to your petitioner for care and custody, also that an order may be made directing said defendant to pay unto your petitioner the sum of $50 as suit money, and a further certain reasonable amount to be paid to your petitioner's attorney herein, Edward H. Berg, and that executions be granted to plaintiff thereon. For such other and further relief as to the court may appear just, proper, and equitable in the premises." To the hearing of the petition of the plaintiff the defendant objected on the following ground: "(1) The original relief now sought by the plaintiff should have been sought and included in the issues rendered by the pleadings heretofore filed in said action and determined in the judgment therein. (2) The court cannot try issues of fact and determine the merits of controversies upon affidavits, and especially where no issues are tendered or formed in regard thereto." As to these objections, the court reversed its ruling. Thereupon the defendant filed and presented to the court a petition, supported by affidavits, in which he asked that "an order be granted and entered to amend and correct its former decree (so) as to award the care, custody and control of said minor child, *** during the term of his minority, and for such other and further relief as to the court may seem just and meet." It will be seen, therefore, that the issues presented on the hearing of the petitions were (1) whether or not plaintiff should be granted any relief by way of alimony for herself; (2) whether defendant should be compelled to pay for the support of their said minor child; (3) whether said minor child should be awarded to the defendant on his cross-petition. Upon the final hearing of the petitions, the court made the following order among others from which the appeal was taken: (1) That the said application of the defendant be denied. (2) That the said application of the plaintiff in so far as she asks alimony for herself personally is denied. (3) That the defendant pay to the clerk of this court for and to defray the said expenses $25 monthly, payable on the 1st day of each and every month subsequent to October, 1907, until the said child becomes of age or until the further order of the court, which money is to be paid over by the said clerk to the said plaintiff while she actually resides in and has her home and domicile within this state, and said child is cared for and educated by her within this state in a manner satisfactory to the court.

It is contended by the defendant and appellant that inasmuch as there was no alimony for the plaintiff or allowance for the support of the minor child asked for in the original complaint, and no provision was made in the judgment for such alimony or for the support of the child, the court was without jurisdiction to make an order granting either alimony to the plaintiff or an allowance for the support of the minor child in this proceeding. In view of the fact that the court denied the motion of the plaintiff for alimony, it will not be necessary for the court to determine the question at this time as to whether or not it had jurisdiction to grant alimony to the plaintiff when no claim for alimony was made in the original complaint. But we are clearly of the opinion that the court under the provisions of our Code had the authority to...