LEE v. LEE

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Docket Number

No. 33269.

Advocates

Price McLain, of McComb, for appellant. The Chancellor could not legally render any decree in favor of the appellee until he first paid in full the defaulted alimony installments. Cross v. Cross, 127 App. Div. 740, 111 N.Y. Supp. 788; Craig v. Craig, 163 Ill. 176, 45 N.E. 153; Beard v. Beard, 57 Neb. 754, 78 N.W. 255; 19 C.J. 225, pars. 534, 535; Schlom v. Schlom, 115 So. 197, 149 Miss. 111; Amis, Divorce and Separation in Mississippi, sec. 206, page 278. The decree rendered March 5, 1937, reducing the alimony from $45 to $25 is void and unauthorized by law. The petition in the case at bar is not such petition as will sustain a modification decree. It is a nullity, and its nullity is not cured by the evidence. The only legal action the Chancellor could have taken, under the evidence and the petition, was to have dismissed said petition. Clark v. Clark, 98 So. 157, 133 Miss. 744. The decree, if legal, is unauthorized by the reason the record shows that the financial status of the parties had not changed materially or substantially since the court modified the original decree by a decree rendered May 4, 1935. This court has repeatedly held that a chancery court has no authority to change a final decree allowing permanent alimony, except upon proof of some material and substantial change in the conditions and circumstances of the parties. Malone v. Malone, 131 So. 871, 159 Miss. 138; Primrose v. Primrose, 97 So. 418; Clark v. Clark, 98 So. 157, 133 Miss. 744; Amis, Divorce and Separation in Mississippi, sec. 206, pages 277-278. The remarriage of R.S. Lee, and his increased expenditures caused thereby, is no ground for reducing alimony. 19 C.J. 276, sec. 627. From the record the sum of $25 per month alimony, decreed to appellant under the decree rendered March 5, 1937, is grossly inadequate. Primrose v. Primrose, 97 So. 418. L.H. McGehee and Roach Jones, all of McComb, for appellee. This court has repeatedly held that where there is a material change of conditions and circumstances, that Section 1421 of the Code of 1930 gives the court, in a proper proceeding, the power to alter or modify its former decree with reference to alimony and the custody of children. Campbell v. Lovgren, 166 So. 365, 175 Miss. 4; Aldrich v. Aldrich, 166 Mich. 248, 131 N.W. 642; Aldrich v. Aldrich, 237 Mich. 695, 206 N.W. 482; Kenney v. Kenney, 231 S.W. 267; Boniface v. Boniface, 17 S.W.2d 897; Lamborn v. Lamborn, 80 Cal.App. 494, 251 P. 943. There has been a material change of circumstance between the date of the decree of May 4, 1935, and the date of the decree here appealed from. Whether or not there has been a material change of circumstances is a question of fact for the trial court and like any other question of fact, when it has been decided by the trial court, it cannot be set aside by this court if there is any reasonable evidence upon which to sustain it. Barry v. Maddocks, 156 Miss. 424, 125 So. 554. All that was necessary for appellee to have alleged in his petition was that there had been a material change in circumstance between the decree of May 4, 1935, and the date of the filing of the petition, and pray for a modification of the decree of May 4, 1935. The appellee, in his petition, however, not only so alleged and prayed for the reduction of alimony, but he set out the entire history of this case, such allegations, of course, are mere surplusage and in no manner affect the other allegations of the petition. The appellant contends that the Chancellor could not legally render any decree in favor of the appellee until he first paid in full the defaulted alimony installments. The case of Schlom v. Schlom, 115 So. 197, 149 Miss. 111, presents a complete answer to the contention of the appellant. The facts of this case are exactly the same as in the Schlom case. Up until the time that he filed his petition asking for a modification the appellee continued to abide by the decree of May 4, 1935, in full. It was not until after he filed his petition asking for a modification that he began to pay the appellant the sum of $25 per month. If the appellee had arbitrarily reduced the alimony payments without filing any petition asking for relief there might be some merit in appellant's contention, but here, as in the Schlom case, he promptly filed his petition and made no reduction until after his petition was filed. If a material change in circumstances existed, under authority of Campbell v. Lovgren, 175 Miss. 4, the court had the authority to refuse the appellant any alimony at all, and if it had the authority to do that, it of course had the authority to reduce the alimony to $25 per month. We submit, however, that taking all of the facts into consideration $25 per month alimony to the appellant is not insufficient.

Judges

Anderson, J., delivered the opinion of the Court.

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LEE v. LEE.

1. EQUITY.

Where reduction of alimony payments did not begin until after husband filed petition for modification of divorce decree providing for such payments, decree reducing alimony payments was not erroneous on ground that defalcation in payments subjected husband to clean hands doctrine, in view of statute authorizing court on petition of husband to change alimony decree and from time to time make such new decree as case may require (Code 1930, section 1421).

2. DIVORCE.

Under statute providing for allowance of alimony and authorizing court on petition of husband to change decree and from time to time make such new decree as case may require, alimony decree is never a "final judgment" but is always open to change (Code 1930, section 1421).

3. DIVORCE.

The chancellor's decision on the facts modifying alimony decree will not be set aside unless it is against overwhelming weight of the evidence (Code 1930, section 1421).

Anderson, J., delivered the opinion of the Court.

On May 1, 1934, the appellee was granted a divorce from appellant, his wife. The decree provided, among other things, that he pay her as alimony $60.00 a month beginning May 1, 1934; $50.00 a month beginning January 1, 1935, and $45.00 a month thereafter, subject to the right of the court thereafter to change the decree. Appellee made these alimony payments up to April, 1936. On the 15th of that month he filed a petition asking the court to reduce the monthly payments to $25.00. After filing the petition he began to reduce the payments to $25.00 and continued so to do up to the time of the hearing. Shortly after the filing of that petition, appellant filed a petition praying that appellee be cited for contempt of court because of his failure to pay the full amount of the last award of $45.00. The two proceedings were consolidated and tried together. The court dismissed the contempt proceeding and granted the prayer of appellee's petition, reducing the amount of monthly payments to $25.00.

Appellant contends that the decree is erroneous for two reasons: (1) That she had a vested right in the default instalments of $20.00 a month — the different between $45.00 and $25.00 a month, which he paid beginning with the filing of the petition for reduction — which vested right could not be taken away, and which defalcation subjected appellee to the clean hands doctrine; (2) that the evidence was insufficient to sustain the decree of the court reducing the monthly payments from $45.00 to $25.00.

We are of the opinion that Section 1421, Code of 1930, and the principles laid down in Schlom v. Schlom, 149 Miss. 111, 115 So. 197, and Campbell v. Lovgren, 175 Miss. 4, 166 So. 365, are a complete answer to the first contention of appellant. In considering this question it should be borne in mind that the reduction complained of did not begin until after the filing of the petition for modification. That was true in the Schlom Case. In that case the court upheld the reduction made by the husband and father without first having such reduction approved by the court. In discussing the question the court said that the clean hands doctrine had no application — would not prevent the relief prayed for; that the husband and father had the right to make the reduction subject to the approval of the court. Section 1421 provides, among other things, for the allowance of alimony to the wife, and that the court may afterwards, on petition of the husband, change the decree and from time to time make such new decree as the case may require. Under this section no alimony decree is ever a final judgment, it is always open to change.

The second contention is also without merit. The chancellor's decision on the facts will not be set aside unless it is against the overwhelming weight of the evidence. That is not true in this case; there was ample evidence to sustain his finding.

Affirmed.

LEE v. LEE.

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