Grant v. Grant

McCOMB, J.

From an order denying defendant's motion for the modification of a provision for alimony in an decree of divorce, defendant appeals.

[360]

These are the undisputed facts:

Plaintiff and defendant were married October 30, 1932. January 27, 1939, plaintiff filed a complaint for divorce from defendant, the prayer of which read as follows:

“WHEREFORE, plaintiff prays judgment of this Court as follows:

“1. That plaintiff be awarded a judgment of divorce, and that the bonds of matrimony now existing between the plaintiff and defendant be dissolved; and,

“2. That defendant be ordered to pay to plaintiff reasonable sums of money as and for her support and maintenance, both during the pendency of this action and permanently thereafter;

“3. That defendant be ordered to pay to plaintiff as and for attorneys fees and court costs herein, a reasonable sum; and,

“4. For such other and further relief as to this Court may seem meet and just in the premises.”

The complaint is devoid of any allegations concerning the property rights of the parties and there is no allegation with reference to the property settlement between them. default was entered to the complaint and on February 27, 1939, an interlocutory decree of divorce was entered in favor of plaintiff, which contained among others the following provisions:

“That defendant, John Grant, be, and he is hereby, ordered to pay to the plaintiff herein, as and for her support and maintenance, the sum of $17.50 each and every week forthwith and continuing until such time as the plaintiff herein remarries;

“. . . That that certain property settlement agreement of the parties hereto dated February 14th, 1939, be, and the same is hereby, approved.”

Defendant moved to modify the interlocutory decree of divorce by striking therefrom all provisions which required him to pay plaintiff alimony, and in support of his motion filed an affidavit reading in part as follows: