Sullivan v. Sullivan

• Decision Date: 20 January 1927
• Docket Number: 3 Div. 757
• Citation: 215 Ala. 627,111 So. 911
• Parties: SULLIVAN v. SULLIVAN.
• Court: Alabama Supreme Court

111 So. 911

215 Ala. 627

SULLIVAN v. SULLIVAN.

3 Div. 757

Supreme Court of Alabama

January 20, 1927

Rehearing Denied March 31, 1927

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Petition in equity by Martin H. Sullivan against Annie C. Sullivan. From a decree overruling a demurrer to the petition respondent appeals. Reversed and rendered.

Ball &amp Ball, of Montgomery, for appellant.

Weil Stakely & Cater, of Montgomery, for appellee.

THOMAS J.

A question presented is the right of the courts to modify decrees for alimony payable by installments, after the lapse of time, where there is no power reserved in the decree to make such modification. In recognition of such necessity, according to the justice of the circumstances and changed conditions of the parties, it has been suggested that such decrees be kept open. Johnson v. Johnson, 195 Ala. 641, 71 So. 415; Rearden v. Rearden, 210 Ala. 129, 97 So. 138; Ortman v. Ortman, 203 Ala. 167, 82 So. 417. In Morgan v. Morgan, 211 Ala. 7, 99 So. 185, the decree had been kept open by specific provisions contained therein.

The question reverts to the exercise of the power of the court to expressly reserve the authority to modify such a decree to meet the justice of changed conditions, and the patent observation that this is but the exercise of the authority in the premises already vested in said court by law in proceedings necessarily continuous in nature and operation. Alexander v Alexander, 13 App.D.C. 334, 45 L.R.A. 806, 812; Emerson v. Emerson, 120 Md. 584, 87 A. 1033, 1036; Stevens v. Stevens, 31 Colo. 188, 72 P. 1061; Jewel v. Jewel, 71 Colo. 470, 207 P. 991; Skinner v. Skinner, 205 Mich. 243, 171 N.W. 383; Staton v. Staton, 164 Ky. 688, 176 S.W. 21, L.R.A.1915F, 820; Audubon v. Shufeldt, 181 U.S. 575, 21 S.Ct. 735, 45 L.Ed. 1009. Such is the rule in this jurisdiction. Ortman v. Ortman, 203 Ala. 167, 82 So. 417; McAlister v. McAlister, 214 Ala. 345, 347, 107 So. 843; Jones v. Bryant, 214 Ala. 348, 108 So. 68.

The allowance in the case at bar will be considered and construed in accordance with its substance and not its mere form. If, when so considered, the effect of the decree rendered was not that of a division of property, but of an allowance of alimony payable by installments for the support of the wife and children, it may be modified. Johnston v. Johnston, 212 Ala. 351, 102 So. 709; Skinner v. Skinner, 205 Mich. 243, 171 N.W. 383; Herrick v. Herrick, 319 Ill. 146, 149 N.E. 820. And after such allowance has been made in a final decree for alimony, payable by installments, it may be modified upon the application of either party if the facts and justice of the same warrant. And if it be a mere allowance as alimony the power of change is not limited by the fact that the several amounts or installments were fixed by agreement of the parties and approved by the court incorporating the agreement into the final decree for divorce.

To an ascertainment of the basis of this decree it is noted that the bill for divorce charged that the respondent was able to provide a permanent support and alimony; that the agreement was the provision for permanent support of the complainant's wife; and prayed for absolute divorce, the adopting of the terms of the agreement, and that she be permitted to marry again--and the decree was pursuant thereto. No decree for alimony eo nomine was made. It is further true that the respondent answered the bill, saying, among other things:

"Defendant denies the allegations of paragraph 5 of said bill of complaint, but admits that he is possessed of reasonable means. Defendant further alleges that he has amply provided for the support and maintenance of the complainant, and also for the support, maintenance, and education of the children of complainant and defendant, and that a satisfactory provision was made by and between complainant and defendant by virtue of a certain agreement made on July 30, 1921, a copy of which is hereto attached and made a part of this answer and marked Exhibit A, which said agreement is referred to in paragraph 5 of the bill of complaint; and, further, defendant avers that he has fully complied with all the terms of said agreement, and is willing and ready to continue to comply with all the terms of said agreement."

The contract or agreement incorporated in the pleading and decree vested in the wife the personal and real property then in her possession, with the power of conveyance, and the agreement of each party to execute the conveyance of such property necessary under the law when requested by the other so to do.

It is further provided:

"That party of the first part shall pay, or cause to pe paid, to party of the second part, for and during her natural life, the sum of $200 per month for her entire support and maintenance, on the 1st day of each month, beginning with August 1, 1921, the payment for August being hereby acknowledged, and shall, within 60 days from date of this agreement, deposit and maintain with a trust company in Montgomery or New York City sufficient securities to yield the monthly sums, such trust agreement to be drawn and approved by attorneys for the respective parties, so as to assure to said party of the second part the said monthly payment. The party of the first part shall pay, or cause to be paid, all expenses of schooling and clothing of said children, and, in addition thereto, shall pay, or cause to be paid, to party of second part, the sum of $37.50 per month each for the maintenance of said children Katherine and Mercedes while they reside with party of the second part. The party of the first part shall pay, or cause to be paid, to party of the second part, for the child Julie, $35 per month which shall cover all her expenses until said Julie is placed in school with her

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