Gosnell v. Webb

BISHOP, J. pro tem.

The appeal before us is from the following, order: “Motion by defendant for reduction of alimony awarded in Interlocutory Decree of Divorce, heretofore submitted June 22, 1942, the Court now finds that the Interlocutory Decree of Divorce granted by this Court June 17, 1940, was made by the Court after stipulation of parties as to various issues involved, made in open court and prior to completion of the taking of testimony at the trial; that said interlocutory decree did in truth and in fact reflect a compromise of all of the marital and property rights of the parties and embodied therein the ultimate result of what amounted to a property settlement agreement between the parties; that because thereof this court is without jurisdiction to modify or alter this decree, and it is therefor [e] ordered that the motion by defendant to modify the interlocutory decree of divorce with respect to award of alimony and for reduction thereof, now be and hereby is denied.” We are of the opinion that the trial court had jurisdiction to modify the interlocutory decree, (adopted by reference in the Pinal Judgment of Divorce) and that it erred in declining to consider defendant’s motion on its merits.

We are interested in the following excerpts from the introductory recitals found in the interlocutory decree itself and in paragraph 2 of the decree: “Thereupon it was stipulated

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that the plaintiff might amend her prayer for relief to ask for other and additional relief, to wit,—divorce.

“It was further stipulated that the matters of permanent alimony for plaintiff, attorneys’ fees and costs should be submitted to the Court without further testimony or other proceedings.

“Thereupon the Court said: ‘Let the records show nevertheless that it has been submitted before the trial has been fully completed. Both sides still have other testimony that could have been produced. They are waiving that for the purpose of compromise, ’ to which all the counsel, in the presence of their respective clients assented; whereupon the Court took the cause under submission, and the Court having duly considered the law and the evidence and being dully [sic] advised in the premises, and findings of fact and conclusions of law having been expressly waived by both parties; and

“It being further stipulated and agreed by the respective counsel, in the presence of the plaintiff and defendant, in open court, that the court enter its judgment awarding to the plaintiff herein such sum or sums as alimony to be paid to the plaintiff by the defendant as may be determined by the court.