Warren v. Warren
| Decision Date | 12 January 1912 |
| Docket Number | 17,442 - (177) |
| Citation | 133 N.W. 1009,116 Minn. 458 |
| Parties | EMMA L. WARREN v. EDWIN A. WARREN |
| Court | Minnesota Supreme Court |
After the former appeal, reported in 114 Minn. 389, 131 N.W. 379 defendant moved to modify the judgment of divorce entered in 1894 by reducing the payments of alimony therein decreed and by modifying the order made December 23, 1910, so that the monthly payments of alimony should be reduced without any requirement in connection with the order that defendant and his wife should convey any real estate to plaintiff. The motion was heard by Kelly, J., who ordered that the monthly payments of alimony should be forty dollars instead of sixty dollars, the reduction to begin on October 1, 1910, and should be without requiring plaintiff to deliver to defendant or to his order the benefit certificate in the United Workmen for $2,000, and without requiring defendant to convey to plaintiff the land described in the order of December 23 1910. From that order, plaintiff appealed. Affirmed.
Alimony -- modification of decree.
It is within the power of the court, under section 3592, R.L. 1905, subsequent to the entry of a judgment for alimony in a divorce action, to make such modifications respecting the alimony awarded as the changed conditions and circumstances of the parties may require, notwithstanding the fact that the judgment was founded upon a stipulation or agreement of the parties, entered into pending the action, fixing the award to be made in the event the court should grant the divorce.
Stipulation respecting alimony not binding upon the court.
Stipulations or agreements of that kind must be deemed to have been entered into in view of the authority conferred upon the court by the statute, are merged in the judgment, and are not so far contracts as to be controlling upon the court, or to preclude subsequent change, in a proper case, of the original judgment.
Discretion of trial court.
Whether, in such a case, a modification should be made, upon the application of one of the parties, at all, and the terms and extent thereof, rests in the sound discretion of the trial court.
Discretion of trial court.
Discretion in this case held properly exercised.
Briggs, Thygeson & Everall, for appellant.
B. H. Schriber, for respondent.
1. This cause was before the court on a former appeal (114 Minn. 389, 131 N.W. 379), where the facts are fully stated. Defendant's present wife refused to join in the conveyance to plaintiff of the real property referred to in that opinion, and defendant was therefore unable to comply with the modified judgment of alimony which was there approved. Defendant then moved the court below for a further modification, resulting in the order appealed from. The present order reduced the monthly payments from $60 to $40, leaving the property rights of the parties as existing under the former judgment. A full consideration of the record leads to the conclusion that the order appealed from was within, and not beyond, the discretion of the court below, and must be affirmed.
2. It appears that the original judgment for alimony was based upon a stipulation of the parties, entered into pending the action, but not to facilitate the granting of the divorce and plaintiff contends that the judgment so founded and entered became a contract between the...
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