Simpson v. Simpson

• Decision Date: 21 September 1931
• Docket Number: 5727
• Citation: 51 Idaho 99,4 P.2d 345
• Parties: VERA SIMPSON, Appellant, v. D. H. SIMPSON, Respondent
• Court: Idaho Supreme Court

4 P.2d 345

51 Idaho 99

VERA SIMPSON, Appellant, v. D. H. SIMPSON, Respondent

No. 5727

Supreme Court of Idaho

September 21, 1931

DIVORCE-MODIFICATION OF DECREE.

1. Authority of court to modify divorce decree can be exercised only on showing of material and permanent change in parties' conditions and circumstances (C. S., secs. 4643 4644).

2. Party seeking modification of divorce decree has burden of proving change of conditions and circumstances (C. S., secs 4643, 4644).

3. Remarriage of divorced husband, though drain on finances held not ground for reducing alimony and support money to former wife and child (C. S., sec. 4644).

4. On motion to modify divorce decree with respect to payments for support, court under record held required to assume wife's figures as to husband's earnings were correct.

5. Divorced husband's income, except for misconduct penalties, being substantially same as when decree was entered, order reducing alimony and support money to former wife held abuse of discretion (C. S., sec. 4644).

6. Court held unauthorized to satisfy delinquent instalments of support money actually accrued prior to date of order upon partial payment thereof.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Robert M. Terrell, Presiding Judge.

Appeal from an order of the District Court modifying judgment of divorce with respect to payments for maintenance and support. Reversed.

Order reversed. Costs awarded to appellant.

Guy L Tyler and Carl C. Christensen, for Appellant.

The remarriage of the divorced husband is no grounds for reducing the amount of alimony decreed to his former wife and is no ground for reducing the support money for his minor child. (Humbird v. Humbird, 42 Idaho 29, 225 P. 76; 19 C. J. 276.)

The plaintiff had a vested right in all past due payments of support money for herself and minor child, and the court had no jurisdiction to order a satisfaction of such unpaid instalments by the payment of lesser sum than was actually due to the plaintiff. The statutes of Idaho, giving the court power to modify divorce decrees relating to alimony and support money for a wife and minor children, have no retrospective effect but relate solely to future instalments. (C. S., secs. 4643, 4644; Cormana v. Naron, 37 Idaho 482, 217 P. 597; Soule v. Soule, 4 Cal.App. 97, 87 P. 205; Parker v. Parker, 203 Cal. 787, 266 P. 283; Cummings v. Cummings, 97 Cal.App. 144, 275 P. 245; Craig v. Craig, 163 Ill. 176, 45 N.E. 153; Delbridge v. Sears, 179 Iowa 526, 160 N.W. 218; 19 C. J. 272.)

Roy L. Black and O. R. Baum, for Respondent.

Under the statute of Idaho, the court has the power, at any time, to modify its original decree providing for the support and maintenance of the wife and children. (C. S., secs. 4643, 4644; Humbird v. Humbird, 42 Idaho 29, 243 P. 827.)

That there had been a change of circumstances of the parties warranting a change in the allowance made by the original decree; and, where such a change is had, the court is vested with discretionary authority to modify its former decree. (1 R. C. L., Alimony, par. 94, p. 948; Humbird v. Humbird, supra; Newton v. Newton, 145 Wis. 261, 130 N.W. 105; Haskell v. Haskell, 119 Minn. 484, 138 N.W. 787; Gloth v. Gloth, 154 Va. 511, 71 A. L. R. 700, 153 S.E. 879.)

BUDGE, J. Lee, C. J., and Givens, Varian and McNaughton, JJ., concur.

OPINION

BUDGE, J.

Appeal is taken from an order modifying judgment of divorce with respect to payments for support and maintenance of the wife and minor child of the parties.

September 8, 1927, judgment of divorce upon default was awarded in favor of appellant upon grounds of extreme cruelty and custody of the minor child of the parties was awarded to appellant. The portion of the decree material to questions here involved is as follows:

"That the defendant (respondent) shall pay to the plaintiff, (appellant) for the support and maintenance of herself and the minor child of the parties, the sum of $ 50.00 for the month of September, 1927, and thereafter the sum of $ 62.50 per month, for each and every month thereafter as long as the plaintiff shall remain single, . . . . That all said payments shall be subject to the further orders of this Court. . . ."

January 21, 1931, upon motion of respondent, supported by his affidavit, an order was directed to appellant requiring her to appear and show cause on January 30, 1931, why the decree should not be modified to reduce the amount of alimony and support money from $ 62.50 per month to $ 25 per month. Appellant filed a verified return and answer to the order to show cause and thereafter respondent filed a counter-affidavit and the matter was submitted upon the two affidavits of respondent and the return and answer of appellant. January 30, 1931, the court made the order from which this appeal is taken modifying the decree as to payments for maintenance and support of appellant and her minor child to provide as follows:

"That beginning as of the next payment of maintenance and support money date, February 15, the defendant pay to the said plaintiff the sum of $ 20.00 and a like amount on the 1st of March, 1931, and a like amount every payday to the end that the said payments shall be the sum of $ 40.00 per month, of which amount $ 20.00 shall be payable on the 1st and $ 20.00 on the 15th until July 1, 1931, and until further order of the Court.

"It is further ordered that of the funds now due that the said defendant herein shall be entitled to full satisfaction of the amounts so due by the payment of the sum of $ 56.25 together with costs of such levy."

Appellant contends that no substantial or permanent change in the conditions or circumstances of the parties was shown justifying a modification of the decree. The power to modify such a decree is given by the provisions of Idaho Compiled Statutes, secs. 4643 and 4644 and by the decree itself. However, the rule is well established that the authority to modify such a decree can only be exercised upon a showing of material, permanent and substantial change in the circumstances and conditions of the parties (Humbird v. Humbird, 42 Idaho 29, 243 P. 827; Chaffee v. Chaffee, 63 Utah 261, 225 P. 76; 2 Schouler on Divorce, 6th ed., sec. 1831; 19 C. J. 273; 1 R. C. L. 948), and the burden of showing such changed circumstances is upon the party seeking the modification.

"The rule that the party who is seeking affirmative relief has the burden of proof is one which necessarily underlies all our procedure." (Jaycox v. Varnum, 39 Idaho 78, 92, 226 P. 285.)

We must therefore determine whether such showing of changed circumstances was made as would justify the exercise of the discretionary powers of the lower court in modifying the decree.

In his affidavit upon which the order to show cause was issued respondent avers that since the date of said decree he has remarried. Remarriage of divorced husband is no ground for reducing the amount of alimony and support money to former wife and minor child, even though such remarriage is a drain on his financial resources. (Humbird v. Humbird, supra; State v. Brown, 31 Wash. 397, 72 P. 86, 62 L. R. A. 974; 19 C. J. 276; note, 30 A. L. R. 79.)

Showing was also made by respondent with respect to asserted changed circumstances as to his earnings, which may be analyzed as follows: We find the decree based upon allegations presumably proven showing respondent's average monthly earnings as railroad engineer of $ 250. Respondent concedes in his affidavit that at the time of the entry of the decree his average monthly earnings were from $ 280 to $ 300, and he avers that he has no other property and must depend on his earnings as railroad engineer. Appellant from information furnished by an official of respondent's employer, sets forth in exact...