Mindlin v. Mindlin., 4198.

• Decision Date: 17 March 1937
• Docket Number: No. 4198.,4198.
• Citation: 41 N.M. 155,66 P.2d 260
• Parties: MINDLINv.MINDLIN.
• Court: New Mexico Supreme Court

41 N.M. 155

66 P.2d 260

MINDLIN

v.MINDLIN.

No. 4198.

Supreme Court of New Mexico.

March 17, 1937.

Appeal from District Court, Bernalillo County; Fred E. Wilson, Judge.

Suit by Frank Mindlin against Pauline S. Mindlin, wherein defendant filed a cross-complaint, on which she was granted a divorce and wherein Frank Mindlin filed a motion to abate alimony. From a judgment abating the alimony, defendant appeals.

Affirmed.

Trial court's right and power to terminate alimony is only subject to review because of abuse of discretion.

Joseph Gill, of Albuquerque, for appellant.

John F. Simms, of Albuquerque, for appellee.

ZINN, Justice.

On March 7, 1934, Pauline S. Mindlin, the appellant herein, was granted a decree of divorce from her husband, Frank Mindlin, the appellee here. This decree recited that she and her husband had previously made a property settlement which was approved by the court. The question of alimony was not covered or fixed in the property settlement. The court, from the evidence adduced at the divorce hearing, decreed that $60 a month was a suitable allowance and ordered appellee to pay that sum until the further order of the court.

On the 6th of November, 1935, the appellant married one James M. Hill. Appellee, who had at all times complied with the decree by paying the alimony, on December 6, 1935, moved the court to abate the alimony. An order was issued directing the appellant to show cause why the motion should not be granted. She filed a return thereto. She first demurred to the motion, and thereafter set out her marriage to James M. Hill, but stated in the return that on the 12th of December, 1935, she filed a suit for the annulment of her marriage to him on the ground of fraud, or, in the alternative, for a divorce, and made a copy of the complaint in her suit against Mr. Hill a part of the return. Her complaint against Mr. Hill shows that she was led to believe that Hill was worth a large sum of money, the owner of a ranch in Oklahoma valued at $150,000 and that he had been knighted by the King of England for bravery, that he was a graduate of several universities, and she was thereby induced to marry him and did marry him on these representations and those of affection and did live with him for about a month. She discovered that such representations on his part were false and fraudulent, and that he was, in truth and in fact, merely an adventurer.

To her return was also annexed an affidavit of her attorney in the divorce proceeding to the effect that she and her attorney consented to the divorce and the property settlement between the appellant and the appellee when, in truth and in fact, there was no ground for divorce and that the property settlement made at the time of the divorce between appellant and appellee was entirely onesided and unfair to the appellant. At this point we deem it necessary to point out that the decree of divorce was awarded to her on her cross-complaint and her prayer.

At the hearing on the motion to abate alimony, the appellant put her testimony into the record. As soon as the testimony had proceeded far enough to disclose that its purpose was to reopen all matters settled by the divorce decree and the property settlement, counsel for the appellee objected, and the court ruled that, if the appellant was defrauded in the property settlement, she should not be allowed to go into that matter on the hearing of the appellee's motion to abate alimony, but that she had her remedy by proper action. Appellant's attorney then offered to prove that the $60 a month alimony carried by the decree and omitted in the poperty settlement was part of the consideration for the division of the property, and the court held, over the objection and exception of the appellant, that the property settlement was not before the court on the pending motion. Appellant testified that she is worth about $8,000 and that appellee is worth about $25,000, and that she has no other means of support besides the income from the $8,000 worth of investments and the $60 a month alimony. On cross-examination she admitted that she received $65 a month rent on her house. This house had been put in order by appellee when appellant took it over, and that appellee gave her additional help by way of paying the Home Loan payments on it after the divorce.

She also testified that prior to her marriage to appellee she had secured a divorce in Kansas from another husband and had received about $22,500 from this first husband. Since her divorce from appellee, her second husband, she lost a considerable amount of this money playing the stock market. She and appellee had no children, but she is the sole support of her mother. There is evidence to show that services of counsel in the instant case are worth from $125 to $150.

At the end of appellant's testimony, appellee moved the court for an order sustaining the motion to abate alimony. The trial court sustained the motion to abate the alimony and denied any attorney's fees to appellant, from which judgment this appeal is prosecuted.

Appellant relies upon two points for reversal:

First. The court erred in sustaining the motion to abate on the evidence introduced.

Second. The court erred in refusing to allow attorney's fees to her attorney in resisting the motion to abate.

This brings for our consideration the question of the power of the district courts to abate alimony awarded a wife who remarries.

In the instant case, the original decree of divorce provided as follows:

“(2) That the said cross-defendant Frank Mindlin pay to the cross-complainant Pauline S. Mindlin, the sum of Seven Hundred Twenty ($720.00) Dollars per year, as a suitable allowance for her maintenance and support; that the same be paid in the following manner:

“Sixty ($60.00) on the first day of each calendar month, at the First National Bank in Albuquerque, New Mexico, and that said payment be continued until the further order of this Court.”

[1][2] In this decree we find a specific reservation of the right to make further orders in reference to alimony. This is a right we recognized in Lord v. Lord, 37 N.M. 24, 16 P.(2d) 933. The granting of alimony and the fixing of its amount and duration is a matter peculiarly within the discretion of the trial court. In Lord v. Lord, supra, we said:

“The divorce statute (1929 Comp.St. c. 68, art. 5 [sections 68-501 to 68-511]) does not authorize the court to reserve jurisdiction in the matter of alimony, or to decree concerning it otherwise than finally, except during the pendency of the suit. Neither does the Code of Civil Procedure, so far as we are aware, authorize reservation of jurisdiction in any matter or cause. Yet it is familiar practice in equity.

“The statute does not authorize a court to reserve jurisdiction of the custody, maintenance, etc., of the minor children. The statute itself reserves it. Id. § 68-506. The court could not, if it would, divest itself of such continuing jurisdiction. The fact does not argue against the court's power, in its discretion, to reserve jurisdiction in the matter of alimony. It merely shows that the Legislature did not see fit itself to reserve or continue the jurisdiction.”

The court in the original decree decided to fix the alimony at $60 a month until his further order, plainly indicating that circumstances might arise to make the award different or to call for its modification.

The Supreme Court of Washington, in Ruge v. Ruge, 97 Wash. 51, 165 P. 1063, 1065, L.R.A. 1917F, 721, uses this language:

“In such cases the decree is not final and conclusive as a matter of law, because it does not purport to be final and conclusive as a matter of fact. The reservation in the decree plainly indicates an unfinished determination of the judicial mind; that is, the court has not completely disposed of the case. The power of the court not having been exhausted, it reserves to itself the right to exercise the unexhausted portion of its power in such manner as changed conditions and circumstances may indicate to be just.”

See, also, 19 C.J. 270, title, Divorce, and cases there noted.

[3] That the court could reopen the case and change the award, either increasing it, diminishing it, or abating it in its entirety, cannot now be questioned.

[4] Holding, as we do, that the trial court has the power to abate, we are left only with a determination of whether such power was abused. Cassan v. Cassan, 27 N.M. 256, 199 P. 1010. There are many cases dealing with the question of abating alimony after the remarriage of the wife. The cases are collected in exhaustive notes in 19 C.J. 275, 276, 293, Cropsey v. Cropsey, 104 N.J.Eq. 187, 144 A. 621, 64 A.L.R. 1266-1273, and Myers v. Myers, 62 Utah, 90, 218 P. 123, 30 A.L.R. 74-79. The law seems to be well settled that the marriage of the wife does not of itself abate the alimony due from her former...