Sango v. Sango

• Decision Date: 12 October 1926
• Docket Number: Case Number: 16382
• Citation: 249 P. 925,121 Okla. 283,1926 OK 823
• Parties: SANGO v. SANGO.
• Court: Oklahoma Supreme Court

1926 OK 823

249 P. 925

121 Okla. 283

SANGO v. SANGO.

Case Number: 16382

Supreme Court of Oklahoma

Decided: October 12, 1926

Syllabus

¶0 1. Divorce--Continuing Jurisdiction of Court to Make Orders Relative to Custody and Support of Children.

Under the provisions of section 507, Compiled Oklahoma Statutes, 1921, the court retains the right at any time, upon its own motion, or the suggestion of anyone interested, to make such reasonable order as may be necessary upon either or both of the parties to a divorce action to provide for the guardianship, custody, support, and education of their minor children, and such orders may be from time to time changed.

2. Same--Showing of Changed Condition to Authorize Modification of Judgment.

When a final judgment affecting support and maintenance of minor children is sought to be modified as provided by section 507, Compiled Oklahoma Statutes, 1921, there must be shown a change in condition of the parties such as to render such modification proper.

R. E. Stewart and Bruce & Brewer, for plaintiff in error.

Disney & Wheeler, for defendant in error.

RILEY, J.

¶1 This cause is now presented the second time on appeal to this court. The controversy concerns the modification of a final award for the support and maintenance of minor children. The original judgment in this case was entered August 20, 1923, in the district court of Muskogee county. On the former appeal, Sango v. Sango, 105 Okla. 166, 232 P. 49, on December 23, 1924, this court reversed in part and affirmed in part the judgment rendered below. Material to this appeal, that part of the former judgment of the trial court providing for $ 50 per month for support and maintenance of two minor children during their minority was affirmed; and certain real estate involved in the action, and by said judgment decreed to be the property of the defendant husband, was charged with a lien to secure the payment of the maintenance awarded.

¶2 In compliance and in accordance with the mandate and opinion of the Supreme Court, on the 4th day of February, 1925, judgment was rendered in the lower court. On February 23, 1925, the defendant filed a motion to modify the judgment, and on March 7, 1925, the district court, by journal entry, modified its former judgment, as affirmed by the Supreme Court, relative to the support and maintenance of the minor children by eliminating the award of $ 50 per month pending the minority of the children and by substituting therefor an award in a lump sum of $ 1,200. It may be borne in mind that at the date of the modification the defendant was in default for the payment of eighteen months' support and maintenance, or in the sum of $ 900.

¶3 From said order so modifying the said judgment, the plaintiff perfected this appeal and assigns as error the action of the trial court in sustaining the motion of the defendant and in modifying the judgment of the lower court as theretofore rendered by said court and as theretofore affirmed by the Supreme Court.

¶4 The plaintiff in error presents this question: Has the trial court power and authority to modify its former judgment made and entered by and under the mandate and decision of the Supreme Court? The plaintiff in error cites Stumpff v. Harper, 90 Okla. 195, 214 P. 709; Wells v. Shriver, 81 Okla. 108, 197 P. 460; Midland Valley Railway Co., v. Clark, 96 Okla. 264, 221 P. 1025; and numerous cases to the effect that:

"When the party aggrieved by the judgment of the trial court appeals to this court, and the judgment of the trial court is affirmed, and such judgment has become res adjudicata, the trial court is without jurisdiction to entertain a motion, application, or petition to vacate and set aside such judgment, or retry the issues that had theretofore been tried and adjudicated."

¶5 We agree with the law announced in the cases cited, but so far as a judgment for maintenance and support for minor children is concerned, we are of the opinion that a court having jurisdiction has the power to modify, when proper, before or after final judgment.

¶6 Under the provisions of section 507, Compiled Oklahoma Statutes, 1921, the court retains the right at any time, upon its own motion, or the suggestion of anyone interested, to make such reasonable order as may be necessary upon either or both of the parties to a divorce action to provide for the guardianship, custody, support, and education of their minor children, and such orders may be from time to time changed. Miles v Miles, (Kan.) 65 Kan. 676, 70 P. 631.

¶7 Section 507, supra, is as follows:

"When a divorce is granted, the court shall make provision for 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, either before or after final judgment in the action."

¶8 By reason of this section, the court having jurisdiction of an action for divorce, upon proper notice and within its sound judicial discretion, may change any former order made concerning the matter enumerated within the foregoing statute, by adding to or taking from the burdens of either party relative to the same. The fact that the cause was appealed to the court of last resort and there affirmed does not alter the finality of the judgment. As stated in the case of Josey v. Josey, 114 Okla. 224, 245 P. 844, the duty to support one's minor children is a continuing obligation. However, on a motion to modify an award for maintenance and support of minors, the court is not authorized, nor has it the power, to go, back and determine that the allowance in the original judgment was unjust or inequitable in view of the then circumstances of the parties. Section 507, supra, is not retroactive, but it is prospective. It is for the time being. The right to modify must date from the application for modification. It must be based upon a change in condition. It must look to the then condition; and fix and determine not what their past rights were, but what they shall be. It may alter their rights and duties toward each other thereafter whenever circumstances render such change proper.

¶9 In the case at bar it is...