Phillips v. Phillips
| Decision Date | 08 November 1947 |
| Docket Number | 36867. |
| Citation | 186 P.2d 102,163 Kan. 710 |
| Parties | PHILLIPS v. PHILLIPS. |
| Court | Kansas Supreme Court |
Appeal from District Court, Leavenworth County; James H. Wendorff Judge.
Action for divorce and division of property by Robert S. Phillips Jr., against Ella Mae Phillips, who filed an answer and cross-petition. The defendant and cross-petitioner was granted a decree of divorce and given custody of minor child and the plaintiff was ordered to pay $40 per month for the support and education of child. From an order reducing the monthly allowance to $25, the defendant and cross-petitioner appeals.
Syllabus by the Court.
1. Subsequent to the decree in a divorce action, the district court has a continuing jurisdiction to change or modify an order therein made for support of a minor child when facts and circumstances are shown which make such change or modification proper. (G.S.1935, 60-1510)
2. The fact that the parties to a divorce action have entered into an agreement as to amounts to be paid monthly for support of a minor child, and that the court, finding the agreement to be reasonable, has ordered such payments to be made, does not deprive the trial court of its jurisdiction thereafter to modify the order as to subsequent payments, whenever facts and circumstances are shown which make such modification proper.
Benjamin F. Endres, of Leavenworth, for appellant.
Homer Davis, of Leavenworth, for appellee.
The sole question presented by this appeal is whether under the facts presently to be stated, a trial court has jurisdiction subsequent to the decree in a divorce action, to modify an order for support and education of a minor child upon proper showing of changed conditions. Facts material to the issue may be briefly stated.
In October, 1944, the appellee Robert S. Phillips, Jr., filed an action against Ella Mae Phillips, the appellant, for divorce and for an equitable division of the property. The defendant filed an answer and cross-petition. While the action was pending, the parties entered into a stipulation in which they agreed that, in the event the court should grant the defendant a divorce upon her cross-petition, the property should be divided in the manner set forth in the stipulation; that the defendant should be awarded $750 as permanent alimony and should also be awarded 'the sum of $40.00 per month to be paid from and after the date of the decree, to the defendant, for the support and maintenance and education' of a minor child then about three months old. The case went to trial on the petition and cross-petition, at the conclusion of which, on November 2, 1944, the defendant was granted a decree of absolute divorce from the plaintiff and was given full custody control of the minor child with right of reasonable visitation on the part of the plaintiff. The court also found, upon evidence, that the terms of the stipulation were fair, just and reasonable, and entered judgment accordingly, awarding alimony and directing the plaintiff to pay $40 per month for support and education of the minor child.
On August 10, 1945, the appellee filed a motion for a reduction of the amount of $40 per month which he had been directed to pay for the support of the minor child, alleging that he had complied with the provisions of the order but that his financial condition had been changed to such an extent that he was no longer able to pay that amount. After a hearing duly held, the amount was reduced from $40 to $25 per month. It is conceded that the appellee paid $40 a month up until the effective date of the order reducing the amount to $25, from which order the instant appeal was taken.
Appellant does not contend that in making the reduction to $25, the court abused its discretion, and nothing in the record discloses any such abuse. She simply contends that the stipulation in which the parties agreed that the defendant should receive $40 a month for the child's support was a contract, and that having been duly approved by the court, the court thereafter had no jurisdiction to modify it.
G.S.1935, 60-1510 provides:
'When a divorce is granted the court shall make provision for the guardianship, custody, support and education of the minor children of the marriage, and may modify or change any order in this respect whenever circumstances render such change proper.' (Italics supplied.)
Appellant takes note of this statute, but argues that when the parties entered into the stipulation including the provision for payment of $40 a month, they in effect 'waived' the...
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