Tuve v. Tuve

WHELAN, J. Defendant Helen M. Tuve appeals from an order granting plaintiff John M. Tuve’s motion to modify, and modifying a judgment of divorce.

Histoby of the Action

An interlocutory decree of divorce was entered as of April 4, 1955 in favor of defendant. It contained the following provisions :

" It is further ordered that the defendant is awarded as her sole and separate property a % interest in the following described real property, together with the furniture and furnishings therein, . . .

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"That defendant shall in addition to said % interest be allowed the use of said premises as a family residence for herself and said minor children free of any cost until the youngest of said minor children reaches the age of majority.

"That plaintiff is awarded a % interest in said- real property, said interest to be subject to defendant’s right to use said premises as a family residence for herself and said minor children as above set forth. That said % interest shall also constitute security for the payment of support heretofore ordered. ’ ’

The final judgment of divorce entered April 5, 1956, confirmed the provisions of the interlocutory decree.

[81]The interlocutory decree did not contain any provision (a) restraining either party from transferring, subject to the. burdens imposed by the decree, his dr her separate' estate of inheritance in the real property; (b) providing for sale or partition at the termination of the defendant’s exclusive right of occupancy; (c) reserving jurisdiction to order partition and sale at the expiration of the period of exclusive occupancy ; or (d) requiring defendant to maintain fire insurance.

On March 8, 1968, plaintiff filed a motion to obtain a modification of the divorce decree seeking a sale of the property and a division of the proceeds, an accounting of fire insurance proceeds paid defendant following a partial destruction by-fire of the improvements on the real property, and pro rata reimbursement for- taxes paid by plaintiff since the divorce decree.

Defendant was finally served with notice of the hearing of the motion under circumstances indicating the possibility she had evaded service. She appeared before the court on April 22 without counsel and obtained a continuance until April 25 at 9'a.m., when the matter was continued until 2 p.m., at which time defendant again appeared without counsel and the hearing of the motion was had.