Rudd v. Gerken

• Decision Date: 24 December 1940
• Docket Number: 8365.
• Citation: 295 N.W. 491,67 S.D. 534
• Parties: RUDD v. GERKEN.
• Court: South Dakota Supreme Court

295 N.W. 491

67 S.D. 534

RUDD v. GERKEN.

No. 8365.

Supreme Court of South Dakota

December 24, 1940

Appeal from Circuit Court, Faulk County; J. H. Bottum, Judge.

Action by Edith Rudd against Frank Gerken to recover monthly installments of alimony which accrued under a decree of divorce. From a judgment for the plaintiff, defendant appeals.

Reversed.

W. F Bruell, of Redfield, for appellant.

Roy A Nord, of Faulkton, for respondent.

RUDOLPH Judge.

On the 12th day of June, 1918, there was filed in the office of the clerk of the circuit court of Faulk County a judgment in favor of the plaintiff, whose name was then Edith Gerken against the defendant, Frank Gerken. The judgment granted the plaintiff a divorce from the defendant, awarded the custody of a minor child to plaintiff, and decreed that the defendant pay to the plaintiff the sum of thirty-five dollars per month as alimony, payable on the first day of every month after the entry of the judgment. On the 4th day of June, 1938, the plaintiff commenced an action against the defendant which action is the action now before us, and which is based on the judgment entered in 1918.

It is contended that the judgment in question is not a final judgment sufficient to support an action thereon for the reason that under the provisions of Section 165 R.C.1919 (SDC 14.0726), the court has power to modify its provision in a divorce decree providing for an allowance to the wife for her support. This code section after providing that, when a divorce is granted for an offense of the husband, the court may compel him to provide for the maintenance of the children, and to make suitable allowance to the wife for her support, then provides "and the court may from time to time modify its orders in these respects." This contention of appellant presents for the first time to this court the question of the power of the court to modify provisions of a divorce decree in respect to installment payments payable to the wife and which installment payments have accrued and are past due. The decree upon which this action is based provides for monthly payments to the wife at the rate of thirty-five dollars per month, and the action is brought to recover these monthly payments which have accrued.

It should be noted that the first paragraph of SDC 14.0726 relates simply to the maintenance and support of the wife and children. This first portion of the statute does not go to a division of the property belonging either to the husband or the wife, or both. The decree was granted under this first paragraph of the statute and relates solely to the support and maintenance of the wife and child. The provision for support and maintenance in this decree should not be held to be an award of money or property other than as such award might be necessary for the support of this plaintiff. The...