Bacigalupi v. Bacigalupi

NOURSE, J.

On the twenty-first day of September, 1921, the plaintiff commenced an action against the defendant for divorce upon the grounds of desertion. In her complaint she asked for the custody of her three minor children and

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prayed for the sum of “$100.00 per month as alimony for the support and maintenance of herself and said minor children. ’ ’ On the 20th of October, 1921, a divorce was granted to the plaintiff as prayed and findings were duly waived. The clerk entered upon his minutes' a notation that it was further ordered that the defendant “pay to the plaintiff $40.00 a month alimony.” On the 27th of October, 1921, the court duly signed an interlocutory judgment and decree of divorce in which the defendant was ordered to pay to the plaintiff “as and for the support of the minor children the sum of $40.00 per month.” This judgment was duly entered on October 29, 1921, and no appeal was taken therefrom and no motion for a new trial was made. On October 3, 1922, prior to the entry of a final decree therein, the attorneys who had appeared for the respective parties at the time of the trial filed their written stipulation purporting to authorize the trial court to modify the interlocutory decree as so entered by inserting the words “said plaintiff” so that the judgment should require the defendant to pay to the plaintiff “as and for the support of

said plaintiff and

the minor children” the sum of $40 per month. Acting upon this stipulation alone the trial court on the third day of October, 1922, entered its order purporting to modify said interlocutory decree by inserting the words “plaintiff and” before the words “minor children.” On January 2, 1923, final judgment of divorce was entered in which no mention was made of the provision for payment of alimony or the support of the children. On May 7, 1923, the defendant, acting through an attorney who had been substituted for him, moved the trial court to modify the interlocutory decree as modified by the order of October 3, 1922, so as to relieve the defendant of paying to the plaintiff the alimony and maintenance money covered by the order of October 3, 1922. This motion was supported by the affidavit of the defendant in which it was shown that one of said children had passed the age of majority and that all three were living with the mother, who received a large part of their earnings; that they were employed in positions from which they earned good salaries and did not need any support from the defendant. It was also alleged that the stipulation of October 3, 1922, was signed by an attorney who was