Johnson v. Superior Court

THOMPSON, J. This is a petition for a writ of review to cancel an amended final decree of divorce on the ground [112]that the trial court was without jurisdiction to modify the decree after it became final.

April 8, 1937, Alice M. Johnson was granted an interlocutory decree of divorce from this petitioner, J. W. Johnson, on the ground of extreme cruelty. That decree determined, in accordance with findings which were adopted, that a previous purported agreement settling property rights between the parties, dated February 1, 1933, was procured by fraud and therefore void. The decree also awarded to Mrs. Johnson in settlement of her property rights the sum of $25,000 to be paid at the rate of $150 per month for the period of one year and thereafter $250 per month until the entire sum was fully paid, together with 5 per cent interest on the unpaid portion of the principal sum, payable annually. Upon the ex parte application of- Mrs. Johnson, a final decree of divorce was entered on May 11,, 1938, in which it was provided with respect to the award of money to be paid to her that this petitioner pay to his wife said sum of $25,000, less the sum of $8,662 which had been previously paid, leaving a balance of $16,348 with 5 per cent interest thereon from February 1, 1932, amounting to the aggregate unpaid balance of $19,-771.99 as of April 8, 1937, to be paid according to the terms of the interlocutory' decree at the rate of $150 per month until February 1, 1938, and at the rate of $250 per month thereafter until said balance is fully paid, together with 5 percent interest on the unpaid balance of the principal sum, payable annually.

No appeal from that final decree was taken. Thereafter, on motion of Alice M. Johnson, and upon notice thereof, at which the respective parties were present in open court, when evidence was adduced in behalf of both parties, the court rendered what is termed “Decree Amending Final Decree of Divorce”, on June 13, 1938, purporting to change merely the language of the original final decree awarding to Mrs. Johnson the payment of $25,000 and providing for the unpaid portion thereof. The specified instalments to be paid appear to be the same as those provided for in the original final decree.

From the last-mentioned order and amended decree this petitioner gave notice of appeal to the Supreme Court on July 14, 1,938. That appeal is now pending in the Supreme Court.

[113]