Clark v. Clark , 133 Miss. 744 ( 1923 )

HoldeN, J.,

delivered the opinion of the court

This is an appeal from a decree of the chancery court changing and disallowing alimony to the appellant, Mrs. Clark, who had previously obtained a divorce from the appellee, Mr. Clark, in which decree an allowance of alimony of $75 per month was granted in favor of the wife; and this allowance was revoked by the chancellor on a pleading styled a “petition of Guy P. Clark, to change alimony, ’ ’ which in effect is a supplemental petition asking that the decree allowing the divorce and alimony be changed, and that the wife he disallowed any amount of alimony, because “the circumstances of the petitioner had been materially changed, and that he is not now financially able to pay the amount of alimony awarded, or any amount whatsoever, and that the complainant was fully able to sustain herself. ’ ’

The petition further alleged that theycourt, in the original decree entered in the case, only adjudicated the allowance as temporary alimonyand prayed that the court adjudicate the question of whether or not the complainant was entitled to any permanent alimony whateyer, and asking that no alimony he allowed.

The appellant, Mrs. Clark, answered the petition, and denied that the original decree only fixed temporary alimony, and denied the right of the court to enter any further order in reference £o the said alimony, and denied the right of the court to release the defendant from payment of the alimony of seventy-five dollars per month as allowed in the original decree granting her a divorce on the grounds of adultery. She also denied that the de-' fendant was financially unable to pay the alimony, and that there had been any material change in his financial condition, or in the circumstances of the parties.

The original decree granting the divorce and allowing the alimony of seventy-five dollars per month contains a special provision. After granting the divorce and the 'alimony, the decree goes on to say ‘ ‘until the court shall see fit to enter such other, further, and more general orders, in the matter of alimony as to the court may seem meet and proper, and the question of alimony for further orders of the court is hereby expressly retained. ’ ’

It is contended by the appellee, Mr. Clark, the husband,' that the alimony allowed against him in favor of Mrs. Clark was only temporary alimony, and that, under the provision of the decree, the chancellor retained the right to change the amount or disallow it' altogether at any time he might see proper, and that the supplemental petition to change and disallow the alimony justified the chancellor, under the special provision of the original decree, in ordering that no 'further alimony be allowed the wife.

On the hearing of the petition by the chancellor, the proof showed conclusively there had been no substantial change in the circumstances of the parties since the rendition of the decree allowing the alimony of seventy-five dollars per month to the wife, which decree had been granted at a previous term of the court during- the year before. The testimony does disclose some slight changes in the condition and cirqumstances of the parties, yet there is no such difference as would warrant the court in changing or abolishing the alimony upon that ground.

So, if the decree of th^ chancellor disallowing the alimony is to be upheld in this court, it will have to be upon the theory that- the chancellor granted only temporary alimony, and had the matter continuously open for revision or change, based upon the facts and circumstances as then existed at the time the original decree for divorce was granted, because, as we have said above, this record shows no change in the circumstances of the parties justifying a .change in the alimony under section 1415, Hemingway’s Code (section 1673, Code of 1906), which provides. that — -“The court may/ afterwards, on petition, change the decree, and make from time to time such new decrees as the case may require.”

Now, then, it will be seen that the determining question on this appeal is whether or not the provision in the original decree of the chancellor making the allowance was for temporary or permanent alimony.

It is our opinion the retention by the chancellor of the question of alimony for further orders of the court, amounted to no more than the authority already given the court to change the decree from time to time as the case might require; that is, where the circumstances of the parties have changed so as to justify a change in the decree with reference to the alimony, as provided in section 1415, Hemingway’s Code (section 1673, Code of 1906).

Therefore, since the chancellor in the supplemental petition was authorized to do no more than he could do under the statute giving him the power to change his decree, and since the conclusive proof in the case is that there .has been no substantial change in the circumstances of the parties, the court was not authorized to change or abolish the alimony granted under the original decree, because it was permanent alimony, subject to change at any time only under the statute when the facts as to the circumstances of the parties warranted a change; and the chancellor had no power to act otherwise. The decree allowing the alimony was final, the allowance was permanent, which was based upon the facts shown in evidence atdhe trial, when the original decree for divorce was granted on ■the grounds of adultery. .The decree was final, and the alimony permanent, because it could have been appealed from or execution could have been issued upon it. These are decisive tests as to finality.

In view of these conclusions, the decree of the lower court is reversed, and judgment entered here for the appellant.

Reversed and judgment here for appellant,