Gillespie v. Andrews

CRAIG, J.

It appears from' the petition in this proceeding that on October 18, 1920, an interlocutory decree of divorce was made and entered in favor of Clara Gillespie and against George S. Gillespie, petitioner herein, and that on October 19, 1921, a final decree was entered dissolving the bonds of matrimony theretofore existing between the parties, and reciting “that said plaintiff, and said defendant

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and each of them be and they are hereby free from each and all of the obligations thereof.” The final decree also provided, as did the interlocutory judgment, “that the plaintiff; herein, Clara .Gillespie, be and she is hereby given the care, custody and control of George S. Gillespie, Junior, the son of the parties hereto.”

On September 22, 1922, the parties signed and filed in the original divorce action a stipulation in writing by the terms of which they agreed that the interlocutory decree, and the final decree, “may be modified and amended with reference to the custody, care, education, maintenance and support of the minor child of said parties in' accordance with the modified decree, a copy of which is hereto attached.” Thereafter both parties appeared before the superior court, evidence was introduced, and an order entitled “Modification of Pinal Decree of Divorce,” dated October 16, 1922, was made and entered. It provides that both parties desire “that said decree be modified so as to settle and dispose of the respective property rights of the parties”; that a property settlement was made between them prior to the rendition of the interlocutory decree, but that neither decree contained any provision concerning the property rights of the plaintiff or defendant. It then proceeds, in part, as follows: “Now, therefore, it is hereby ordered and decreed that said decree of divorce be modified and amended” to award to the defendant custody of the boy, and that

“In lieu of said property settlement

heretofore entered into said defendant shall pay to said plaintiff within sixty (60) days from the date of

this modified decree

the sum of one thousand dollars ($1000.00),

for the care, support and maintenance of the plaintiff,”