Plummer v. Plummer

• Decision Date: 12 August 1940
• Court: Maine Supreme Court
• Parties: PLUMMER v. PLUMMER.

14 A.2d 705

PLUMMER

v. PLUMMER.

Supreme Judicial Court of Maine.

Aug. 12, 1940.

Report from Superior Court, Cumberland County.

Suit for divorce by Agnes A. Plummer against James L. Plummer, wherein a decree was entered for the plaintiff. The plaintiff filed petition to amend or alter the decree by ordering the defendant to pay her alimony. On report under a stipulation that, if as a matter of law petitioner may not sustain her petition, the entry should be "petition denied", but that, if she had a right to maintain her petition, case should be remanded to the superior court for a hearing on the merits.

Case remanded to the superior court for an entry "petition denied".

Argued before BARNES, C.J, and STURGIS, THAXTER, HUDSON, MANSER, and WORSTER, JJ.

Jacob H. Berman, of Portland, for plaintiff.

Richard E. Harvey and Frank P. Preti, both of Portland, for defendant.

THAXTER, Justice.

At the January term, 1933, of the Superior Court for the County of Cumberland, this petitioner, Agnes A. Plummer, obtained a divorce from this respondent, James L. Plummer. By the terms of the decree the care and custody of a minor child, Lewis L. Plummer, were given to the petitioner and the father was ordered to pay $10 per week for the support of the child. There was no award to the petitioner of any sum either for alimony or support and there is no claim that such omission was through fraud, accident, or mistake. The child attained his majority December 29, 1939. The husband James L. Plummer, has remarried. February 2, 1940, the former wife filed a petition in the Superior Court for the County of Cumberland which alleges that conditions have altered and that she is in dire need of support. She prays that the court may alter or amend the decree of divorce entered in 1933 by ordering the husband to pay to her such sum of money as the court deems proper for her support or as alimony. The case is before us on report under a stipulation that if as a matter of law the petitioner may not sustain her petition the entry shall be "petition denied"; but that if as a matter of law the petitioner has the right to maintain her petition, the case is to be remanded to the Superior Court for a hearing on the merits.

Counsel profess to bring before this court the question whether the Superior Court may under the facts set forth amend or alter a decree of divorce by ordering the former husband to contribute to the former wife's support or to pay her alimony.

Strictly speaking this is not a petition to review and alter a decree relating to alimony. There was no decree entered on the subject. And as was said in Henderson v. Henderson, 64 Me. 419, 420, where a similar question was before the court: "What is there to be reviewed?" The general rule is that apart from statute the question of alimony cannot be raised after a decree of divorce is granted, if it was in issue at the hearing and was omitted from the decree without fraud or mistake. Henderson v. Henderson, supra; Marshall v. Marshall, 162 Md. 116, 159 A. 260, 83 A.L.R. 1237; Bassett v. Bassett, 99 Wis. 344, 74 N.W. 780, 67 Am.St.Rep. 863; McClure v. McClure, 4 Cal.2d 356, 49 P.2d 584, 100 A.L.R. 1257; 17 Am.Jur. 494. Furthermore statutes which authorize modifications of decrees as to alimony or support do not apply where no alimony is granted in the decree. Howell v. Howell, 104 Cal. 45, 37 P. 770, 43 Am.St.Rep. 70; Bassett v. Bassett, supra; Cameron v. Cameron, 31 S.D. 335, 140 N.W. 700, Ann. Cas.1915D, 1062; Moross v. Moross, 129 Mich. 27, 87 N.W. 1035; Harner v. Harner, 255 Mich. 515, 238 N.W. 264; Herbert v. Herbert, 221 Mo.App. 201, 299 S.W. 840; Kelley v. Kelley, 317 Ill. 104, 147 N.E. 659; Note 83 A.L.R. 1250. See also Henderson v. Henderson, supra.

There is a further reason why the petitioner cannot prevail. The sole power of our court over divorce is derived from statute. Henderson v. Henderson, supra; Stratton v. Stratton, 73 Me. 481; Jones v. Jones, 136 Me. 238, 8 A.2d 141. Apart from the inherent right to annul a decree because...