DeLeshe v. DeLeshe

MARKS, J. This is an appeal from an order modifying an interlocutory decree of divorce by requiring defendant to pay plaintiff $125 per month for her support and maintenance.

Plaintiff and defendant were married on October 7, 1913, and separated on May 1, 1944. There were two daughters born to them, both of whom were adults and married when the interlocutory decree of divorce was rendered. On June 27, 1944, plaintiff brought her action for separate maintenance which was thereafter changed by amendment into an action for divorce.

Under date of May 25, 1945, the parties entered into a property settlement which divided their community property between them and awarded plaintiff property of the value of about $20,000. Among other things the contract contained the following:

“That Second Party (defendant) agrees to pay to First Party (plaintiff) for her support and maintenance the sum of Two Hundred Fifty Dollars ($250) per month from date hereof until Second Party is retired from active duty with the United States Navy and upon retirement of Second Party from such active duty, Second Party shall thereafter pay to First Party for her support and maintenance, such sums per month as may be fixed by the Court in the proceedings hereinbefore mentioned; ....

“It Is Understood and Agreed that the payments herein-before provided for either specifically or those later to be fixed by the Court, are to be made by Second Party to First Party during the life time of First Party or until she remarries. ’ ’

The interlocutory decree of divorce, dated May 22, 1945, approved the property settlement, made it a part of the decree, and specifically set forth the provisions of the property settlement just quoted as to the payments to be made to plaintiff.

Defendant was an officer in the Navy of the United States. He was retired for disability under date of February 1, 1946, with the rank of Commander.

[515]On April 12, 1946, plaintiff filed her notice of motion for an order fixing a reasonable sum to be paid her monthly for her support and maintenance “in accordance with the interlocutory decree of divorce heretofore entered.”

The motion was heard on affidavits and counteraffidavits. The facts averred are conflicting. On May 24, 1946, the trial court filed its order modifying the interlocutory decree of divorce by requiring that “defendant pay to plaintiff the sum of One Hundred Twenty-five Dollars ($125.00) per month for plaintiff’s support and maintenance, and it is therefore accordingly ordered that defendant pay to plaintiff the sum of One Hundred Twenty-five Dollars ($125.00) per month for her support and maintenance, said payments to commence as of the 16th day of May and to be payable on the 16th of each succeeding month thereafter until further order of this Court.”