Williams v. Williams

• Decision Date: 23 January 1922
• Docket Number: 22248
• Citation: 127 Miss. 627,90 So. 330
• Court: Mississippi Supreme Court
• Parties: WILLIAMS v. WILLIAMS

90 So. 330

127 Miss. 627

WILLIAMS v. WILLIAMS

No. 22248

Supreme Court of Mississippi

January 23, 1922

DIVORCE. Power to modify as to alimony does not justify substitution of decrees.

Section 1673, Code of 1906 (Hemingway's Code, section 1415) which provides that the court may at a subsequent term change a decree awarding alimony "and make from time to time such new decree as the case may require," does not authorize the court to set aside a decree rendered at a former term and render another in lieu thereof, but only to change and modify the terms of a former decree in accordance with after-arising circumstances of the parties.

HON. J D. MAGRUDER, Special Chancellor.

APPEAL from chancery court of Bolivar county, HON. J. D. MAGRUDER Special Chancellor.

Petition by George Edward Williams against Myrtle D. Williams, for the amendment of a decree of divorce in favor of the defendant. Decree for complainant, and defendant appeals. Reversed and remanded.

Reversed and remanded.

Shands, Elmore & Causey, for appellant.

Under what circumstances may decrees and judgments be corrected after the term on the ground of mistake? A. A decree may be corrected on the ground of fraud. B. A decree may be corrected where it contains "a mistake, miscalculation or misrecital of any sum of money, quantity of anything of any name and there shall be among the records of the proceedings in the suit any verdict, bond, bill, note or other writing of the like nature or kind, or docket or other memoranda by the judge or chancellor whereby such decree or judgment may be safely corrected. Anderson v. McInnins, 99 Miss. 823; Bank v. Norment, 115 Miss. 409. C. Or the proceeding must go on the ground that the judgment was erroneously entered by mistake of the clerk, and was not the judgment actually rendered. Wilson v. Handsboro, 99 Miss. 252.

The petitions seeking reformation charge no fraud and the evidence proves none. Appellee does not allege that he made any mistake and does not prove that he made any. Appellee does not allege and does not prove that the court make a mistake and entered a decree which it did not intend to enter. He does not allege and he does not prove that Mr. Hallam drafted a decree which he did not intend to draft. He does not aver and does not prove that the clerk, by misprision, entered a decree not actually rendered. He does not allege, he does not prove, that Mrs. Williams participated in the procurement of a decree which she did not intend to procure.

The sole and only authority cited by appellee for correcting a mistake in a decree, the case of Zane v. Fink, 19 W.Va. 893, is not accessible to us. It is said to hold that, where, by inadvertance or mistake, a decree by consent does not speak the true intentions of the parties, equity will grant relief and reform it. We do not know what the circumstances of that case were. But we do know that, in the present case, there was no allegation and no proof of inadvertance or mistake.

Does section 1673, Code of 1906, authorizing changes from time to time in alimony decrees enlarge the usual rules governing the correction of mistakes in decrees so as to provide more liberal rules with reference to correcting alleged mistakes in decrees from alimony? We think not. The statute never contemplated, we submit, that the same court, at a subsequent term, should entertain a petition attacking the integrity of a final decree on the bald, naked ground that its finding was not true, no special circumstances whatever being alleged or proved, nor even relied on except in the brief.

We showed in our original brief that the uniform holding of the states, where similar statutes are in force, is that such statutes have a definite aim and purpose, that is to authorize a change in the decree in case of a change in circumstances only. Appellee does not cite a single case, not an adjudged instance to the contrary. Appellee states that the cases cited by us do not apply, because we did not urge for the purpose of the hearing that new grounds had arisen which justified a modification, nor do we do so at this time. But his failure to conform to an essential requirement for the operation of the statute does not make the requirement any the less essential.

J. W. Cutrer and J. C. Cutrer, for appellee.

As justification for the petition to modify the decree for alimony, the appellee relied upon section 1673 of the Code of 1906. The wording of that section of the Code is clear and unequivocal, and provides that when a decree for a divorce contains provisions for alimony for the wife, the court may afterwards on petition, change the decree and make from time to time such new decrees as the case may require.

Counsel for appellant say that relief under this section is granted only where sufficient cause has intervened since the decree, and in support of his contention cite numerous authorities to that effect. None of those cases are applicable to the facts of the case under consideration of this appeal. We have no doubt that they are good law in reference to their own particular facts. We did not urge for the purpose of the hearing that new grounds had arisen which justified a modification nor do we do so at this time. We ask that the decree be changed and altered on the ground that it was entered through mistake. Thompson v. Camors, 89 So. 649.

Counsel contend that there is not enough evidence in the record to warrant the reformation or cancellation of a simple contract, and in support of this contention cite two cases, which we submit have no bearing upon the point whatsoever.

The first case is Ayers v. Mitchell, 3 S. & M. 683. That was an action in equity to rescind a contract to convey real estate on the ground of false and fraudulent representations by the vendor. The court said: "A fair presumption may be indulged that they knew the vendor to be able to convey. Indeed they do not aver that they purchased in ignorance of encumbrances or defective title to that part of the land included in the bond. On this subject they are silent. It is true, that Gates represented to them that he would be able to make a good title, but they do not state that they considered these promises. For anything that appears to the contrary they may have been as well informed of the nature of his title as he was himself, and equity cannot relieve them against their own folly. So far as this portion of the land was concerned, they were only to receive a title on payment of a part of the purchase money, and it is incumbent upon them to put Gates in default by offering to perform their part of the contract before they can ask for a rescission; but no offer or willingness to perform is alleged."

Again; "A scrutinous examination of the complainant's testimony is well calculated to raise a belief that something has been concealed. It is not characterized by that fairness which is necessary for one who is seeking relief in a court of equity. It does not make a full disclosure. Wynn v. Kendall, 85 So. 85.

"We submit that there is no question here of the reformance or cancellation of a contract in any sense of the word. This is a proceeding under a statute authorizing the court in its discretion upon petition to change the decree and make, from time to time, such new decrees as the case may require."

If there ever was a case which required a new decree that justice might be done, this is the one. See especially Humber v. Humber, 109 Miss. 216, 218, 227, 228. Upon the facts shown by the record and upon a careful reading of the statute referred to, we submit that the chancellor was not only not in error in his finding, but was eminently correct, and the judgment appealed from should be affirmed.

The supreme court of Minnesota, in the case of Warren v. Warren, 133 N.W. 1009, dealing with a statute similar to our own, where the decree recited an agreement for alimony entered into between the parties, laid down the following rule: "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 parties, and is not subject to change by the court, except upon restoration of plaintiff to her position and rights before its entry.

In this we are unable to concur. Stipulations and agreements of the kind, where not void by reason of having been entered into to facilitate a decree of divorce, become merged in the judgment when entered, and are not, in the absence of statute upon the subject, so far of a contractual nature as to preclude the court subsequently from changing and modifying the judgment upon...