Sharpe v. Sharpe

ADAMS, P. J.

Appeal from an order denying motion to modify interlocutory decree of divorce.

Plaintiff filed suit for divorce from defendant on July 8, 1938. On September 15th defendant filed an answer and cross-complaint. On March 10, 1939, the parties entered into a separation agreement wherein they divided their corn

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munity property, the husband taking some 200 acres of land, and the wife about 30 acres upon which was located a small store. All of the real property was covered by a mortgage for about $4,000. Personal property was also divided, the husband taking a Packard automobile and the wife a Ford delivery-body automobile. Community debts amounting to approximately $8,500 (including the mortgage) were set forth in the agreement, and the parties agreed to be equally liable for them, together with any increase therein due to costs, fees or interest, either party paying a part of same to be reimbursed one-half, by the other. The wife also agreed to pay $10 per month on the finance contract for the Ford car. The husband agreed to keep the mortgages and liens existing on the combined property from being foreclosed, but one-half of any moneys advanced by him in carrying out this provision was to be repaid by the wife upon the first accounting between the parties. As to two minor children of the parties their care and custody was agreed to be in the wife, no provision being made as to their support and maintenance. Also there was no provision for costs or attorney’s fees in the action for divorce.

On March 28, 1939, the divorce action came on for trial and there being no appearance by defendant and cross-complainant his default was entered. The court indicated that it would order the payment to plaintiff by defendant of $50 per month for the support of the minor son as prayed in the complaint (it appearing at the hearing that the daughter was employed at $30 per month) and would make said. payment a lien upon the real property conveyed to defendant. Said defendant, before an interlocutory decree had been entered, moved the court for an order setting aside his default and permitting a hearing upon the merits insofar as the support money, defendant’s ability to pay same, and the lien therefor were concerned. Hearing on said motion was had at which time both parties appeared. Defendant there contended that his sole income consisted of $172.50 retired pay and that payments required to be made by him under the separation agreement consisted of about $60 per month on the original mortgage, $35 per month on a second mortgage, taxes, insurance on the store property and payments on the automobile awarded to the wife, amounting in all to about $143 per month; that he had tried to sell his part of the property and had quoted it at $20,000, but it