Van Diepen v. Van Diepen

• Decision Date: 10 July 1950
• Docket Number: 9113
• Citation: 73 S.D. 366,43 N.W.2d 499
• Parties: VAN DIEPEN, Appellant, v. VAN DIEPEN, Respondent.
• Court: South Dakota Supreme Court

73 SD 366, 43 NW2d 499 (1950)

VAN DIEPEN, Appellant v VAN DIEPEN, Respondent South Dakota Supreme Court Appeal from Circuit Court, Minnehaha County, SD Hon. John T. Medin, Judge #9113—Reversed T. R. Johnson, Henry C. Mundt, Sioux Falls, SD Attorneys for Plaintiff and Appellant. J. D. Coon, Alan Bogue, LeRoy Kadinger, Sioux Falls, SD Attorneys for Defendant and Respondent. Opinion Filed Jul 10, 1950

ROBERTS, Judge.

In November 1948, a judgment was entered granting to the plaintiff a divorce, awarding to her alimony in the sum of $125 per month and disposing of the real property as follows:

“It appearing further that plaintiff and defendant are joint owners ... in the following real estate: (description), it is ordered, adjudged and decreed that the title to said property remain in the parties to this action the same as it now is, with the right of the plaintiff to live in the house in which she now lives and the defendant to live in the house in which he now lives.”

In January 1949, defendant filed a verified application to modify the decree. He sets forth therein that he is financially unable to make the payments of $125 per month to the plaintiff and that it would be for the best interest of the parties to make a division of the jointly owned property. Plaintiff was required to show cause why the divorce decree should not be amended by reducing the amount of the alimony and making a division of the property. Plaintiff in answer thereto filed an affidavit wherein she states:

“Your affiant resists the order to show cause and the attempted division of the property as therein provided and states that it would be wholly inadequate and improper at this time. Your affiant states that she has no money and has no earning capacity and is unable to provide for herself unless the defendant is required to keep making the alimony payments as provided for in the decree of divorce. ... Your affiant states that she would consider having all of the property definitely set aside to the respective parties on a fifty-fifty division plus that the defendant give a bill of sale to the plaintiff herein of the garbage truck which the defendant purchased recently and turn over to your affiant 200 garbage route customers to be selected from the list of customers that the defendant has and that said customers be chosen from the list of customers so that said customers would be a fair choice from said list and in a territory in the City of Sioux Falls so that said selection would be fair.”

The court after hearing entered an amended judgment reducing the monthly payments to $50 and awarding to the plaintiff the premises now occupied by her and the other real property in question to the defendant. The plaintiff has appealed from the so-called amended judgment.

The principal question presented is whether the court was without authority to modify the decree as to the disposition of property rights.

The statute and decisions in this state recognize that an allowance for the support of the wife or children is subject to revision or amendment as changed conditions may require. SDC 14.0726; Matthews v. Matthews, 71 SD 115, 22 NW2d 27, and cases cited. The case of Cameron v. Cameron, 31 SD 335, 140 NW 700, 702, AnnCas1915D, 1062, had to do with the authority of the court to modify a divorce decree to make an allowance to the wife where no provision for her support had been made in the original decree. It was held that the court was without authority to modify the decree. In the opinion in that case, it was said: “The original decree not having...