Wylie v. Wylie

THOMPSON, J.

This is an appeal from an order of court vacating a previous order which modified an award of alimony in a divorce proceeding. The alimony was allowed in accordance with an agreement settling property rights which was incorporated in the final decree of divorce. The order modifying the previous award of alimony was annulled on the theory that the court lacked jurisdiction to vary the terms of a contract settling property rights which was approved and became a part of the decree of divorce. But the contract for alimony was merely conditional.

The plaintiff and defendant were formerly husband and wife. Dissensions arose between them. A divorce was contemplated. With that in view, they executed a written

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agreement settling their property rights. It disposed of all their property in a manner which is not here involved or criticized except with relation to one paragraph which provides for the payment of alimony in the following language:

“The said A. K. Wylie . . . will pay to Mrs. A. K. Wylie $60.00 per month until such time as she marries again or secures permanent employment and becomes and remains permanently self-supporting. ’ ’

A complaint for divorce was subsequently filed by the plaintiff against his wife on the ground of wilful desertion. The defendant appeared by counsel and denied the material allegations of the complaint. The cause was tried by the court sitting without a jury. Findings were adopted by the court favorable to the plaintiff. The written agreement settling property rights, which was attached to the complaint as an exhibit thereof, was also approved by the court. An interlocutory decree of divorce was rendered in favor of the plaintiff. It also approved the agreement settling property rights, and distributed the property in accordance therewith. September 3, 1931, the final decree of divorce was entered. It incorporated in its provisions the agreement settling property rights, and recited that its provisions had been fully complied with to that date. The plaintiff fulfilled all the provisions of the agreement, paying to the defendant $60 per month, allowed as alimony, until May 5, 1935. On the last-mentioned date he filed in that court and cause a written notice of motion to modify and annul the provision of the contract and decree awarding the defendant $60 per month as alimony. An order was thereupon issued and served on the defendant to show cause at a specified time and place why that alimony clause should not be modified and annulled. The motion was heard by Judge Jamison on June 4, 1935, both parties being present in court, and adducing evidence in their own behalf. The court thereupon entered an order modifying the alimony clause above quoted by reducing the amount to be paid the defendant after July 1, 1935, to $30 per month. No appeal was taken from that order. Unless the court was without jurisdiction to make that order, it became final, subject only to future modification upon a proper showing of a change of conditions of the respective parties.