Murphy v. Murphy
| Decision Date | 06 April 1976 |
| Docket Number | No. 1,CA-CIV,1 |
| Citation | 26 Ariz.App. 302,547 P.2d 1102 |
| Parties | Linda Sue MURPHY, Appellant, v. Clarence Thomas MURPHY, Appellee. 2979. |
| Court | Arizona Court of Appeals |
On December 4, 1970, appellee struck appellant, causing her to lose one of her eyes. Six months later appellant filed for a divorce which was finally granted in September of 1972. The decree of divorce contains the following provision:
'That the husband is to pay to the wife as and for support and maintenance the sum of one dollar per year. However, it is understood and agreed and,
IT IS FURTHER ORDERED that such alimony cannot be increased unless the wife should become legally blind and further that such alimony shall end January 1, 1978.'
Subsequent to the entry of the divorce decree, appellant sued appellee for loss of her eye, alleging an intentional tort, and a jury awarded her a $40,000 verdict. Appellant attempted to execute on the judgment but the execution was returned wholly unsatisfied. A debtor's examination of appellee revealed that he had sold or encumbered all his assets except the house so that there were no assets out of which appellant's judgment for the loss of her eye could be satisfied.
Appellant then filed a petition for modification of judgment and decree of divorce and for an order to show cause in the divorce action seeking to increase the support and maintenance until the judgment for the willful and intentional assault would be paid in full. The parties stipulated that appellant was only blind in one eye. The petition was dismissed by the trial court and this appeal was taken from that order.
The order which dismissed the petition states that the trial court was of the opinion that modification could only be granted if the petitioner became totally blind. On appeal appellant presents the following question:
'Did the trial court err in concluding that the support and maintenance provisions of the judgment and decree of divorce could be modified only if the appellant becomes totally blind?'
Appellant's first argument is that the provision in the decree of divorce relating to total blindness does not operate to limit these court's continuing jurisdiction to amend the alimony provisions of a divorce decree. In other words, it is her position that the court, having once awarded alimony, cannot limit the jurisdiction granted by A.R.S. Sec. 25--327A to amend the same by any condition other than a condition subsequent. In support of this proposition appellant cites the cases of Spector v. Spector, 94 Ariz. 175, 382 P.2d 659 (1963) and Hayne v. Hayne, 9 Ariz.App. 99, 449 P.2d 633 (1969).
In Spector v. Spector, supra, the trial judge allowed the wife $450 per month alimony for the first year after the divorce and $350 per month thereafter until her death or remarriage. On appeal, the wife attacked that provision of the alimony award which terminated her right to alimony upon her death or remarriage contending that it was a restriction upon the power of the trial court to modify the decree. The court in Spector disagreed with this...
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Scott v. Scott
...with it. To merit modifying a divorce decree, the changed circumstances must be both substantial and Continuing. Murphy v. Murphy, 26 Ariz.App. 302, 547 P.2d 1102 (1976); A.R.S. § 25-327.A. Even Ray does not expect that the losses of the marketing division will continue. Temporary present l......