McHan v. McHan, 6491

• Decision Date: 15 November 1938
• Docket Number: 6491
• Citation: 84 P.2d 984,59 Idaho 496
• Parties: FLORENCE MCHAN, Respondent, v. VANCE MCHAN, Appellant
• Court: Idaho Supreme Court

84 P.2d 984

59 Idaho 496

FLORENCE MCHAN, Respondent, v. VANCE MCHAN, Appellant

No. 6491

Supreme Court of Idaho

November 15, 1938

DIVORCE-CONTRACT FOR PROPERTY SETTLEMENT-ALIMONY-REMARRIAGE OF WIFE-MODIFICATION OF DECREE-ATTORNEY'S FEES-JUDGMENT-EXTENT OF RELIEF.

1. Where husband and wife, contemplating divorce, executed a contract for full settlement of property interests and there was nothing in wife's complaint in divorce action to apprise husband that wife would seek something other than the ordinary allowance for her support, husband was justified in assuming that alimony granted by court's decree which incorporated the agreement was subject to court's power to modify, as respects husband's application for modification after wife's remarriage. (I C. A., secs. 7-704, 31-706.)

2. The relief granted to plaintiff in a divorce action, if there is no answer, cannot exceed that which plaintiff shall have demanded in the complaint. (I. C. A., sec. 7-704.)

3. Where husband and wife, in contemplation of divorce, executed contract whereby wife was to receive certain property and husband was to pay wife $35 per month for support, and wife in uncontested divorce action, prayed that property be divided according to the contract and that she be awarded alimony in the sum of $35 per month, monthly allowance did not proceed from any consideration of property rights but was merely a provision for allowance for wife's support subject to modification, and therefore provision of decree based on contract that wife should receive the monthly payments "during her lifetime" was void as to the quoted phrase and was subject to modification. (I. C. A secs. 7-704, 31-706.)

4. A motion to vacate a judgment void in whole or in part may be made at any time.

5. The remarriage of a divorced wife does not ipso facto annul the alimony provisions of a divorce decree, but it affords cogent reasons for doing so, in absence of statutory provisions to the contrary, and ordinarily the alimony will cease upon remarriage of the wife upon husband's application to be relieved therefrom.

6. Under statute, the husband must maintain and support the wife and family. (I. C. A., sec. 31-901.)

7. Where husband and wife, in contemplation of divorce, executed contract whereby wife was to receive certain property and husband was to pay wife $35 per month for support, divorce decree obtained by wife incorporated provisions of the contract, wife was subsequently secretly remarried, and husband, upon learning of remarriage, sought modification of divorce decree regarding provisions for monthly payment to wife, husband was entitled to cancelation of all payments accruing after the remarriage as against contention that his only right to cancelation was as to payments accruing after application for modification of decree. (I. C. A., secs. 7-704, 31-706.)

8. The right of a wife, in a pending divorce proceeding, to an allowance for attorney's fees is dependent, in part at least, upon the necessity of the divorced wife.

9. Where husband and wife, in contemplation of divorce, executed contract whereby wife was to receive certain property and husband was to pay wife $35 per month for support, wife obtained divorce decree which incorporated provisions of contract, was secretly married, former husband subsequently obtained cancelation of monthly payments which accrued subsequent to remarriage, but husband had already paid $280 since remarriage, wife was not entitled to recover $100 attorney's fee incurred in resisting former husband's motion to modify the decree.

APPEAL from the District Court of the Fourth Judicial District, for Gooding County. Hon. D. H. Sutphen, Judge.

Application for modification of divorce decree by appellant, and motion for attorney's fee by respondent. Judgment for respondent. Reversed.

Reversed and remanded.

M. F. Ryan and James R. Bothwell, for Appellant.

The court was without jurisdiction to enter a judgment requiring alimony to be paid during the life of the wife, as the provisions of the statute to the effect that the court may from time to time modify its decree regarding alimony payments, enter into every divorce decree. (Sec. 31-706, I. C. A.; Humbird v. Humbird, 42 Idaho 29, 243 P. 827; Soule v. Soule, 4 Cal.App. 97, 87 P. 205; 1 Ruling Case Law, p. 946, sec. 92; 19 C. J., p. 272.)

While the remarriage of a divorced wife does not, ipso facto, annul the alimony provisions of the decree of divorce, it affords cogent reasons for doing so. Ordinarily the alimony will cease upon the remarriage of the wife and upon the former husband's application to be relieved therefrom. (Heston v. Odlin, 125 Wash. 477, 216 P. 845; Hale v. Hale, 6 Cal.App. (2d) 661, 45 P.2d 246; Cohen v. Cohen, 150 Cal. 99, 88 P. 267, 11 Ann. Cas. 520; Atlass v. Atlass, 112 Cal.App. 514, 297 P. 53; Myers v. Myers, 62 Utah 90, 218 P. 123, 30 A. L. R. 81; McClure v. McClure, 4 Cal. (2d) 356, 49 P.2d 584, 100 A. L. R. 1257; also a note in 37 A. L. R. on p. 441.)

It is immaterial whether the provisions for alimony are incorporated in the decree by the agreement of the parties or by a determination of the court. When once incorporated in the decree the court obtains jurisdiction to revise it at any time for cause. The power conferred on the court by the statute, to modify a decree as to alimony, cannot be divested, and cannot be affected by provisions in the decree declaratory of its absolute and permanent effect. (Maginnis v. Maginnis, 323 Ill. 113, 153 N.E. 654; Gloth v. Gloth, 154 Va. 511, 153 S.E. 879, 71 A. L. R. 700; 19 C. J., pp. 271, 272; Phy v. Phy, 116 Ore. 31, 236 P. 751, 240 P. 237, 42 A. L. R. 588; Southworth v. Treadwell, 168 Mass. 511, 47 N.E. 93; Dickey v. Dickey, 154 Md. 675, 141 A. 387, 58 A. L. R. 634.)

A. F. James, for Respondent.

Where an allowance is decreed to a divorced wife as a substitute for, or in lieu of, her rights in the husband's property, the allowance of alimony is not affected by her remarriage. (See briefs on this point in 64 A. L. R., pp. 1275 and 1276, 30 A. L. R., p. 89, and in 112 A. L. R., p. 257.)

Authority of the trial court to modify a divorce decree can be exercised only on a showing of material and permanent change in the circumstances and conditions of the party. (Simpson v. Simpson, 51 Idaho 99 (1), 4 P.2d 345; Humbird v. Humbird, 42 Idaho 29, 243 P. 827.)

The power to modify instalments of alimony is prospective and not retroactive and the court is without power to cancel delinquent instalment thereof accrued prior to the date the order is made. (Simpson v. Simpson, 51 Idaho 99 (6), 4 P.2d 345; Myers v. Myers, 62 Utah 90, 218 P. 123 (4), 30 A. L. R. 81.)

BUDGE, J. Holden, C. J., and Givens, J., concur, MORGAN, J., concur in the conclusion, AILSHIE, J., Specially Concurring.

OPINION

BUDGE, J.

This is an appeal from an order denying appellant's motion to modify a divorce decree and ordering appellant to pay $ 100 attorney's fees, such order having been heretofore referred to in McHan v. McHan, 59 Idaho 41, 80 [59 Idaho 500] P.2d 29, wherein the facts are in part recited. Substantially the record discloses the following: Marital differences having arisen between appellant and respondent, on November 12, 1932, they entered into an agreement providing in part as follows:

"WHEREAS, the parties hereto are husband and wife, disagreements have arisen between them, they have separated, and the party of the second part is about to institute a suit for divorce against the party of the first part, and said parties are desirous of making a full and complete settlement of all their property interests and to divide up their property:

"NOW, THEREFORE, it is hereby mutually agreed between the parties hereto as follows:

"The party of the second part is to receive and hold as her sole and separate property the home in Fairfield . . . also certain lots, . . . also three certain lots . . . also all household goods, and furniture belonging to the parties . . . also all personal property . . . and also one 1930 Model A. Ford Automobile. . . .

"All other property owned by the parties hereto shall pass to and be the sole and separate property of the party of the first part. . . .

"In addition to the foregoing, the party of the first part agrees to pay within one year from date hereof all mortgage indebtedness and all delinquent taxes upon the home in Fairfield Townsite, including the 1932 taxes thereon. . . . In addition to the foregoing, the party of the first part is to pay the party of the second part for her support a monthly sum of $ 35.00 per month and any decree of divorce hereafter granted shall contain a provision for the same. . . . It is further agreed that in the event that the party of the first part shall die before the expiration of ten (10) years from date hereof; and the party of the second part be then alive, then and in that event, the party of the second part shall be entitled to file and have allowed a claim against the estate of the party of the first part in the sum of $ 3000.00. . . .

"It is further understood and agreed that this agreement shall be submitted to the court for its approval and that said property may be divided and decreed by the court in accordance with the terms of this agreement and that the court may incorporate this agreement as a part of its decree."

Respondent filed an action for divorce the same day, November 12, 1932, the complaint alleging and praying with reference to the foregoing agreement as follows:

"That prior to the institution of this suit, plaintiff and defendant entered into a written contract for the division of said property and for the payment by the defendant of a certain sum of money per month to the plaintiff for her support, . . .

"WHEREFORE plaintiff...