Vert v. Vert

• Decision Date: 15 March 1893
• Citation: 3 S.D. 619,54 N.W. 655
• Parties: VERT, Plaintiff and respondent, v. VERT, Defendant and appellant.
• Court: South Dakota Supreme Court

3 S.D. 619

54 N.W. 655

VERT, Plaintiff and respondent,

v.

VERT, Defendant and appellant.South Dakota Supreme Court Appeal from Circuit Court, Hughes County, SDHon. H. G. Fuller, Judge Affirmed A. B. Melville Attorney for appellant.C. G. Hartley Attorney for respondent.Opinion filed March 15, 1893

KELLAM, J.

In 1891, appellant commenced an action against respondent for separate maintenance.While such action was pending, respondent began an action in the same court against appellant for divorce.These actions were consolidated, and appellant’s pleadings so amended as to ask for a divorce from respondent.Upon the trial a judgment of divorce was entered in favor of appellant, and against respondent, and by the judgment of the court $25 was ordered to be paid monthly by respondent to appellant for her support.Upon the 20th day of April, 1892, on motion of respondent, and upon his affidavit purporting to justly exhibit his financial condition, and upon counter affidavits on the part of appellant, the court made an order reducing such alimony to $15 per month, with leave to appellant to apply for a modification if respondent’s circumstances should subsequently improve.To the making of this order appellant objected, both upon the merits and on the ground that the court had no authority to change or modify the alimony as fixed in the judgment, except upon a showing of a material change in the circumstances of respondent.On the 6th day of September following, appellant moved the court for an order increasing her alimony in this case from $15 per month to $25 per month, and setting aside the order of April 20th, 1892, which temporarily reduced the alimony from $25 per month to $15 per month.This motion was supported and resisted by affidavits.The motion was denied, and this appeal is brought to review such decision.

It is contended by appellant that the motion should have been granted, for the reason that the order of April 20th, reducing the alimony, was made without authority, because it was not shown that respondent’s circumstances had changed for the worse since the rendition of the judgment which fixed the alimony at $25.

We have no means of examining this question.The record is entirely silent as to respondent’s condition at the time of the judgment, but it was shown that he duly paid the monthly installments for December, 1891, and January, February and March, 1892.That during these months he had been teaching school at $35 per month; that in April he was out of employment, and unable to obtain it; that he was obliged to support their infant child; that he was not only destitute of money and property, but that he had been obliged to borrow money to enable him to meet the expenses of himself and child and the payments to appellant.It is true it does not appear that any sickness or other misfortune had overtaken him; nor is there any express showing of his circumstances or his ability to pay in April, as compared with his circumstances and ability at the time of the decree.To justify the court in...