Hamilton v. Hamilton

MOORE, P. J.

The question for decision is whether this court has jurisdiction over an appeal from an order dismissing an order to show cause in re modification of an interlocutory decree of divorce, the defendant husband having deceased and no order for the substitution of his personal representative having been made, and it appearing that the order for the payment of monthly sums to the plaintiff had been made in approving a property settlement agreement.

On August 31, 1945, respondent and her husband Walter A. Hamilton executed a property settlement agreement by the terms of which the husband conveyed to respondent $6,000, a home, furniture and furnishings, automobile, jewelry, bonds and other securities and agreed to pay for her support and maintenance “the sum of $150 per month for the remainder of her life” provided that in the event respondent should remarry such obligation should immediately terminate. In September of the same year respondent filed her complaint for divorce and alleged the execution of the property settlement and prayed that it be approved. The husband filed no answer. An interlocutory judgment of divorce was entered October 30, 1945, wherein the property settlement was incorporated and was in all things approved and the defendant ordered to pay for plaintiff’s support and maintenance the sum of $150 a month. All payments provided by the agreement were made to and including the first day of March, 1946. In that month Mr. Hamilton deceased.

On February 26, 1947, Nathan Newby Jr., as attorney for the administratrix of decedent’s estate, filed an affidavit in the divorce action for an order directing respondent to show cause on March 20, 1947, why the interlocutory decree should not be modified and additional orders made. Such affidavit averred that since the judgment was entered conditions had materially changed in that Walter A. Hamilton had deceased

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and that he had made all payments “for and on account of alimony as provided for in said order. ’ ’ Based upon such facts the court was requested to modify the order “by terminating the alimony payment of $150 for the month of April, 1946, and for all subsequent months and all further payments of alimony be terminated and annuled. ’ ’

The hearing upon the order to show cause was finally held on June 4,1947, following which the court dismissed the application for the order to show cause as well as the order itself on the following grounds: (1) the affidavit for the order to show cause is insufficient in that it does not show that the support provisions are subject to modification under the Civil Code, section 139; (2) the right to apply for a modification under section 139 is a personal right and did not survive the death of defendant or inure to the benefit of his attorneys; (3) the interlocutory judgment having adjudicated the property rights of the parties, including the monthly payments as well as their marital status, has become final as to the property rights. The interlocutory judgment with respect to property rights having been predicated upon the property settlement of the parties is a final settlement of such property rights.