Matthews v. Matthews

• Decision Date: 04 March 1946
• Docket Number: 8808
• Citation: 71 S.D. 115,22 N.W.2d 27
• Parties: JOSEPH MATTHEWS, Appellant, v. GERTRUDE MATTHEWS, Respondent.
• Court: South Dakota Supreme Court

71 SD 115 , 22 NW2d 27 (1946)

JOSEPH MATTHEWS,

Appellant,

v. GERTRUDE MATTHEWS,

Respondent.

South Dakota Supreme Court

Appeal from Circuit Court, Minnehaha County, SD

Hon. Lucius J. Wall, Judge

#8808—Reversed

Louis H. Smith, Sioux Falls, SD

Attorney for Appellant.

Hugh S. Gamble, Sioux Falls, SD

Attorney for Respondent.

Opinion Filed Mar 4, 1946

ROBERTS, Judge.

An action for divorce was commenced by Joseph Mathews against his wife, Gertrude Matthews. The latter filed her answer and cross complaint denying by way of answer the grounds for divorce set forth by the plaintiff and then by way of cross complaint alleged extreme cruelty on plaintiff’s part. On February 14, 1936, the court entered a decree for defendant and awarded her custody of their son Richard, then eight years of age. The allowance of $30 per month in the decree for the support of the child was in accordance with the stipulation of the parties filed in the cause.

In July, 1942, defendant instituted contempt proceedings against the plaintiff claiming that he was then in arrears in making the payment as ordered by the decree. Plaintiff was ordered to pay $10 per month in addition to the payments required by the decree until the full amount of the past due installments was paid.

On April 2, 1945, plaintiff filed a verified application in which it is set forth, in addition to the facts above stated, that plaintiff has since remarried and his family consists of himself, wife and minor daughter; that it takes all of his earnings to maintain himself and family; that defendant has also remarried since the entry of the divorce decree; that her husband is now supporting her and maintaining a home for her; and that defendant has permitted the son who is seventeen years of age “to leave school and work in a ship building yard; that he is working at such work and earns approximately $50 per week and is now supporting and maintaining himself and is not dependent on plaintiff or defendant for support.” Defendant was required to show cause why the monthly allowance for the support of the son should not be terminated.

Defendant in answer to the order to show cause filed an affidavit wherein she states that the monthly payments were expended solely for the support and maintenance of the son; that defendant permitted the son to remain out of high school during the second semester of the 1944-1945 school year “due to the manpower shortage and for the reason that he could earn in excess of $50 per week; ... that he invested practically all the moneys earned in United States Government bonds”; that it is the opinion of defendant “that with the moneys thus earned and being capable of securing money during the summer and part time during the school year, he could fully prepare himself for some profession, and that it was only on this account that she allowed such minor son to remain away from school” during the second semester; and that “beginning with the fall term of school he will reenter and complete his high school education.” The son in his affidavit admits that he quit school to seek employment and express the hope of earning sufficient money to obtain a “professional education.”

In a rebuttal affidavit, plaintiff states that his weekly wage is $45.40.

The court, after hearing, entered an order continuing the monthly allowance for support to and including March, 1946. The original decree provided for payments until the further order of the court. From this supplemental decree, plaintiff appeals.

It is provided by SDC 14.0724 that the court shall have authority in a divorce action to “give such direction for the custody, care, and education of the children of the marriage as may seem necessary or proper, and may at any time vacate or modify the same.” It is provided by SDC 14.0726 that the court shall have power where a divorce is granted for the offense of the husband to “compel him to provide for the maintenance of the children of the marriage” and from time to time to “modify its orders in these respects.”

Under these sections, the jurisdiction of the court in a divorce action to make suitable provision for the children is a continuing one and it may from time to time vacate or modify previous decrees with reference thereto to meet changing conditions. Vert v. Vert, 3 SD 619, 54 NW 655; Greenleaf v. Greenleaf, 6 SD 348, 61 NW 42; Marks v. Marks, 22 SD 453, 118 NW 694; Glad v. Glad, 51 SD 574, 215 NW 931; Rudd v. Gerken, 67 SD 534, 295 NW 491; Lines v. Lines, 69 SD 299, 9 NW2d 705. A decree of...