Stefonick v. Stefonick

Appeal by the defendant from a decree and judgment dissolving the marriage between the parties and awarding the plaintiff $27,416.60, which judgment was declared to be a lien on all real and personal property of the defendant. This amount is in addition to $2,808.40, theretofore paid by defendant to plaintiff under order of the trial court, as support, attorney's fees and other expenses incidental to the action.

The pleadings, evidence and findings are unusually voluminous, although, as will hereafter appear, the issues which we believe to be material are simple. The complaint alleges the marriage between the parties on September 3, 1940, and that no issue resulted. It then alleges the infliction of extreme cruelty by the defendant upon plaintiff at stated times during the years 1940, 1941, 1942 and 1943, in that defendant during such period repeatedly cursed plaintiff and applied vile and abusive epithets at her; threw buckets at her; pulled her from a horse which she was riding; flourished a shotgun before plaintiff and threatened to kill her; knocked her down and kicked her, resulting in serious injury; stated to plaintiff that he wished he had never seen her and wished he could get rid of her and that at some time he would do so; on numerous occasions falsely accused plaintiff of unchastity; habitually cursed, scolded, berated and nagged plaintiff without cause or provocation, threatened her with bodily injury, and inflicted bodily injury upon her, by reason of which during all of said time, she has remained in fear of the defendant and has suffered, and still suffers, from bodily pain and nervous disorders; compelled plaintiff to perform a man's work upon his ranch, in addition to usual housework, by reason of which her health and strength have been undermined. The complaint follows the wording of the statute in alleging that by reason of the course of conduct described the peace of mind and happiness of the plaintiff have been destroyed, and the purpose and legitimate objects of the marriage have been defeated, and the continuance of the married relation between the parties has been rendered perpetually unreasonable and intolerable to plaintiff. It is further alleged that defendant is possessed of property of the clear value of $75,000, the bulk of which was accumulated during the married life of the parties, and to the accumulation of which the efforts of plaintiff have largely contributed. The prayer of the complaint is for a decree of divorce, with an equitable property settlement, and for costs, attorney's fees and maintenance of plaintiff pending determination of the action.

After hearing on an order to show cause, the trial court ordered payment by defendant of attorney's fees, costs, and the sum of $175 monthly for the support of plaintiff until determination of the action.

Defendant by answer denies all of the acts of cruelty alleged in the complaint, and admits owning property of a value not in excess of $50,000. For a further answer and defense defendant alleges that prior to September 3, 1940, the parties were contemplating marriage and were desirous of settling forever the property rights which would result from the contemplated marriage; that for the purpose of avoiding the difficulties or differences which might arise concerning such property rights of either of them, the parties, on September 3, 1940, entered into an agreement in writing, which was recorded in the office of the Clerk and Recorder of Beaverhead County on January 8, 1941, a copy thereof being annexed to the answer as Exhibit A; that said contract is in force and effect and that defendant has fully performed the same. That in said contract the plaintiff waived and relinquished any and all rights she might otherwise acquire in and to the property of the defendant by reason of the marriage of the parties, and agreed with defendant that if either party "shall institute an action for divorce, the party bringing such action covenants and agrees to pay all expenses incurred in such action, and covenants and agrees that the other party shall never be called upon to pay alimony, separate maintenance, costs of suit or any other expense incurred by the party bringing the action." (The portion quoted is from the contract.) That by reason of such agreement the plaintiff is precluded from now asserting any right or interest in or to defendant's property, or from demanding or receiving any part of defendant's estate or any alimony, costs or attorney's fees from the defendant.

For a cross-complaint defendant alleges extreme cruelty by plaintiff toward defendant, as evidenced by her actions and conduct therein particularized. For reasons to appear we deed it unnecessary to elaborate upon these allegations.

By reply to defendant's cross-complaint plaintiff denies all general and specific allegations of extreme cruelty therein set forth. In her reply, as a defense to defendant's further answer, plaintiff alleges the prior marriage of the parties in March 1938; that thereafter they lived together as man and wife, and through the efforts of both commenced to accumulate real and personal property; that prior to December 1939 the defendant conceived a scheme to acquire all of the property in his own name, and to oust the plaintiff from any and all rights which she had, or might have, in the property accumulated by their joint efforts, in pursuance of which a separation agreement was executed by the parties on January 3, 1940; that on the same day defendant fraudulently, and without the knowledge of plaintiff, obtained a divorce from her; that in the divorce action she was represented by W.G. Gilbert, Esq., acting as her attorney under written authority signed by her upon misrepresentation by defendant's attorneys that it was a part of the separation agreement; that the parties did not thereafter live separate and apart, but continued to live together as man and wife, and that plaintiff remained in ignorance of the divorce decree until September 2, 1940, when she was informed thereof by a neighbor. It is further alleged that when questioned on that date the defendant admitted to plaintiff that he had obtained a divorce, and suggested that the parties remarry, and they proceeded to Salmon, Idaho, where they were married the following day, which was the date of the property settlement contract above referred to, dated September 3, 1940; that plaintiff never knowingly signed such contract, and that if her signature appears thereon, which she denies, it was obtained by some fraudulent trick, scheme or device practiced upon her by the defendant or someone acting for him; that such contract was recorded, and that she learned of its existence from a source other than the defendant; that there was no consideration for such contract, and that the sum of $1,000 mentioned therein as the consideration for her execution thereof was never paid to or received by her; that plaintiff had no knowledge of the existence of such purported contract until the summer of 1943, at which time defendant admitted its existence, and promised to cancel and remove it of record.

By reply to plaintiff's defense to the defendant's further answer, defendant denies the material allegations thereof.

At the conclusion of the trial the trial court refused findings and conclusions offered by both parties, and on August 26, 1944, filed its findings of fact and conclusions of law. Thereafter the court made an order enjoining the defendant from disposing of or encumbering any of his property, except for the payment of the judgment herein.

The findings and conclusions, like the pleadings and evidence, are extremely voluminous, the record consisting of some nine hundred pages. Since we think that extraneous issues were injected into the case, we shall discuss only the findings, conclusions and evidence which affect the two material questions raised, viz., (1) Is the evidence sufficiently substantial to justify the decree of divorce in plaintiff's favor, and (2) was the trial court justified in awarding judgment for the plaintiff in an amount equivalent to one-half of the increase in the value of defendant's property from the date of the first marriage until their separation, or at all.

Condensed to their essence, the findings are that the parties have been husband and wife since the 20th day of March 1938; that between that date and the month of June 1943 they lived and cohabited together as man and wife, and by their equal joint efforts during such period a large amount of property has been earned and accumulated in the name of the defendant, to the earning and accumulation of which the work and labor of the plaintiff has contributed equally with that of the defendant.

As to the grounds for divorce, as alleged in the complaint, the court found that throughout the married life of the parties the defendant repeatedly and often threatened, beat, kicked and otherwise maltreated the plaintiff, and continually and habitually cursed, scolded and applied vile epithets to her, and falsely accused her of unchastity; that he required her for unreasonably long hours to perform, and she did perform, labor in his household and as a common laborer upon his ranch, and to lift burdens beyond her strength.

Findings V, VII and VIII have to do with two so-called separation agreements, neither of which would have been signed by the plaintiff, the court finds, had she known or understood the legal meaning of the provisions.

Findings VI, X and XI concern the obtaining of a decree by the defendant, divorcing the parties, which the court found was obtained by fraud and without the knowledge or consent of the plaintiff, she only learning of it shortly prior to the 3rd day of September, 1940, at which time defendant admitted its existence. The court also found that subsequent to the date of such decree the parties continued to live and cohabit together as man and wife, until they were remarried at Salmon, Idaho, on September 3, 1940.

Finding XII concerns a contract, dated September 3, 1940, which provides that the marriage then contemplated by the parties shall not in any way change their legal rights; "that neither should thereby acquire any rights of dower, courtesy, homestead, maintenance, inheritance, descent, widow's allowance, or other statutory right, or rights of survivorship, or under the laws of descent and distribution." The court found that under the strict terms of this agreement, the plaintiff waived all and any rights in and to the property earned and accumulated by the joint efforts of the parties, and all rights that she might acquire under the laws of this state by reason of such contemplated marriage; with the exception that the defendant agreed to pay to plaintiff the sum of $1,000, and that he would provide a home and meet all of the usual living and household expenses of the parties; and agreed that in the event the parties are living together as man and wife at the time of his death, he will leave a will devising and bequeathing to plaintiff one-third of his estate after the payment of his debts and expenses of administration. The court further found that, while plaintiff denied signing such agreement, she did in fact sign it at the earnest solicitation and persuasion of the defendant; that "at the time she signed the same, she did not know or realize because of her agitated and nervous state of mind, nor was she informed by her husband or by anyone, that she was signing away all her marital rights to maintenance and support from her husband, and all her rights in and to the monies, real or personal property accumulated or to be accumulated by the joint work and effort of herself and husband; and the court further finds that if she had so known, she would not have signed the same."

Further, that the plaintiff was, at the time she signed the agreement, in a highly nervous and agitated state, caused by the extremely hard work which the defendant required her to do, by the ill treatment she had received from defendant, and particularly caused by her discovery of the divorce proceedings of January 3, 1940, and that consequently she had since been living with a man not her husband; "and the court further finds that the plaintiff was not capable of giving, and that she did not give, her consent to the terms, conditions, waivers and provisions contained in the said prenuptial agreement."

By Findings XV, XVI and XVII the court found that the $1,000 mentioned in the agreement was not paid by defendant, and was not received by plaintiff; that the plaintiff did not make or execute the will mentioned in the agreement; and that the prenuptial agreement was and is wholly without consideration.

The court further found that the plaintiff has no property of her own, and no means of support; that since the 1938 marriage the value of defendant's property has increased to the extent of $60,450, which increase has been contributed to by the plaintiff equally with her husband; that plaintiff is entitled to have awarded to her one-half of such increase, or $30,225, from which should be deducted all amounts theretofore paid to plaintiff as support, suit money or counsel fees.

Conclusion of law No. I is to the effect that the 1938 marriage has at all times been in full force and effect, and never legally annulled or set aside. By numbers II and III the court concludes that the two separation agreements of December 1939 and January 1940, and the prenuptial agreement of September 3, 1940, are now and have been at all times, null and void, and of no force and effect.

Judgment and decree, in accordance with the findings and conclusions, was entered on September 22, 1944, and this appeal followed.

As above indicated we think the first question for determination is that of the sufficiency of the evidence to support the decree of divorce in plaintiff's favor. We shall not encumber the record with a recital of the evidence in this regard relied upon by plaintiff, but shall refer to such instances thereof as we think amply sustain the allegations of the complaint and the findings of the trial court. For example, plaintiff testified that in September 1940 defendant became enraged because a hog-feed barrel was overturned, and threw a bucket of water at her. On that occasion he said: "You dirty black bitch. You are the one that caused those pigs to upset that, go ahead and put it up again." In October following he pulled her from a horse, in connection with which she testified:

"Q. At that time was there any name calling? A. There was. He said to me — my husband, ``What in the hell are you doing here?' I said ``I am looking for the milk cow.' He said ``Goddamn you, get off of that horse, you will not find her.' I said ``I have to go get her, she has to be milked.' He said, ``You dirty bitch,' and he pulled me off of the horse."

Concerning an incident in April 1941 plaintiff stated:

"In April, 1941, I had a hen set that had some little chickens under her. I always had a big black and white cat for a pet and she started attacking those chickens and my husband took a shot gun and shot this cat through the stomach. She didn't die right away and he took her and hit her against the pole and killed her. I remarked it was cruel and I didn't see how he could do it. He turned, ``If I had some shot in the shot gun, I wonder how you would look jumping like that cat jumped.' I said, ``Now, Pete, you would not do a thing like that.' He said, ``I would just as soon shoot you as that cat.'

"Q. Tell the Court whether he made any move with the gun. A. Yes, he pointed the gun towards me and waved it around in the air. I don't know whether he had a shell in it or not."

Another incident testified to by plaintiff occurred in December 1942 when defendant kicked her in the leg and knocked her through a door, resulting in bruises and the development of phlebitis, for which she was hospitalized. In March 1943 he threatened, she stated, to kill her because she asked that a log house they proposed to occupy be sealed on the inside. In August 1943 defendant required her to take a wagon wheel to town for repair, her testimony being as follows:

"Q. Was there any name calling at that time and if so you may state. A. It was a common thing for my husband to call me a dirty black bitch * * * He said, ``you dirty black bitch, you get into that pickup and go down and take that wheel off,' and I said, ``I will,' and I did."

During the same month another accident occurred after plaintiff had reported to defendant that his pigs were trespassing on a neighbor's property, concerning which she testified:

"When Pete came in I explained to him about the pigs and they should be penned up and he cursed me and told me I should herd those pigs. When I told him I was not able to herd them and do every thing else — I was not able to. The doctor had been there that day and I had a spell with my heart. He grabbed me off the bed.

"Q. And did what? A. He hit me several times in the face and tore my clothes."

On different occasions defendant imputed unchastity to plaintiff, the details of which are better not repeated here.

No useful purpose would be served in detailing other instances[1] of personal injuries, actual and threatened, by the defendant. Testimony in this regard was corroborated by at least two other witnesses. All of this testimony was categorically denied by the defendant. The evidence with respect to the allegations of extreme cruelty was conflicting, but the evidence adduced by plaintiff, if believed by the trial court, amply sustained such allegations and the court's findings. Under such circumstances this court will not disturb such findings. In re Choiniere's Estate, Mont., 156 P.2d 635, and cases cited. It is true that plaintiff's testimony was apparently weakened by evidence of her expressions and actions subsequent to the separation in 1943 and prior to the trial, consisting principally of letters and other written communications from her to the defendant, but this goes to the weight of the evidence and credibility of the witness, which are matters for determination by the trial court. Such determination will not be interfered with by this court on appeal. Dockins v. Dockins, 82 Mont. 218, 266 P. 398; In re McCue, 80 Mont. 537, 261 P. 341.

The further question for determination is whether the trial court was justified in awarding judgment for plaintiff, as alimony, for approximately $30,000 in a lump sum.

There is much in the record concerning the divorce obtained by[2] defendant in January 1940 and the status of the parties during the period thereafter until their remarriage in September 1940. Respondent insists that the common-law relationship of man and wife existed during that period, and that thus they have been continuously married since the ceremony in 1938. Presumably this stand is taken in support of respondent's contention that during the period from the date of the first marriage until the separation preceding the institution of this action, the value of plaintiff's property greatly increased, due to their joint and equal efforts, and thus she is entitled to be awarded one-half of such increase. In view of our decision with respect to the award made by the trial court, we think these matters become immaterial. In passing, we observe that the finding that such increase in value was the result of the joint and equal efforts of plaintiff and defendant is not justified or supported by the evidence.

As above indicated, the trial court concluded, as a matter of law, that the two separation agreements and the prenuptial agreement were null and void, the conclusion as to the latter being based upon the finding that it was and is without consideration. This agreement, in addition to the matters found by the trial court to be embraced therein, contains the following provision: "11. In the event that either party shall institute an action for divorce, the party bringing such action covenants and agrees to pay all expenses incurred in such action, and covenants and agrees that the other party shall never be called upon to pay alimony, separate maintenance, costs of suit or any other expense incurred by the party bringing the action."

Appellant urges that the findings and conclusions of the trial court with respect to these agreements are not supported by substantial, or any, evidence, and therefore, cannot stand. In view of the evidence respecting these agreements, including the denial of the plaintiff that she signed the prenuptial agreement, we are inclined to agree with appellant on the point urged. However, for a reason not mentioned in the findings or conclusions, we must uphold the conclusion as to the prenuptial agreement, in so far as the provisions found in paragraph 11, above quoted, are concerned.

The court's finding that there was no consideration for the[3] prenuptial agreement is based upon its findings that the $1,000, mentioned therein as the consideration, was not paid by defendant or received by plaintiff. While the evidence as to this $1,000 is somewhat obscure, we think that it establishes that a check signed by defendant, payable to plaintiff, in that amount, was delivered to plaintiff, but for some reason was not cashed by plaintiff, and that she never actually received the money. Her reason for not cashing the check and retaining the money is not apparent. The finding of lack of consideration is based also upon the failure of defendant to execute the will provided for in the agreement. However, since no time was specified for execution of the will, we think the finding is not supported on that ground.

Assuming that the prenuptial agreement was voluntarily executed by plaintiff (which assumption appears to be substantiated by the evidence), the question arises as to whether the same was and is contrary to public policy.

Appellant insists that, even though the consideration of $1,000 was never paid, the agreement itself, made in contemplation of marriage, was a good and sufficient consideration, citing as authority Seuss v. Schukat, 358 Ill. 27,192 N.E. 668, 95 A.L.R. 1461; In re Onstot's Estate, 224 Iowa 520,277 N.W. 563; Hardesty v. Hardesty's Ex'r, 236 Ky. 809, 34 S.W.2d 442; and La Liberty v. La Liberty, 127 Cal. App. 669, 16 P.2d 681. In the Seuss case, supra, it is said [358 Ill. 27, 192 N.E. 671]: "Antenuptial agreements are not against public policy but, on the contrary, if freely and intelligently made, are regarded as generally conducive to marital tranquillity and the avoidance of disputes concerning property. (Citing authority.) Marriage constitutes the consideration for the agreement and has been declared to be not only a sufficient consideration but also one of ``the highest value' (citing cases)." The agreement involved in the case cited provided that the prospective bride should retain after her marriage the power exercised by an unmarried person to dispose of her property, and that the prospective husband waived and released all rights which he might acquire through such marriage or as surviving husband, heir at law, or otherwise, to the property owned or thereafter acquired by her.

Marriage settlement contracts are permitted in this state by section 5804, Revised Codes, which provides: "All contracts for marriage settlements must be in writing, and executed and acknowledged or proved in like manner as a grant of land is required to be executed and acknowledged or proved." Section 5805 provides for the recording of the agreement in every county in which is situated land granted or affected thereby. Section 5806 provides that the recording or non-recording of the contract has a like effect as the recording or non-recording of a grant of real property. Section 5787 provides: "A husband and wife cannot, by any contract with each other, alter their legal relation, except as to property and except that they may agree, in writing, to an immediate separation, and may make provision for the support of either of them and of their children during such separation." This section apparently does not apply to agreements made in contemplation of marriage.

It would thus appear that our statutes are silent as to the power of prospective husband or wife to contract as to future rights of either except as they may affect real or personal property owned or to be acquired by either.

In 26 Am. Jur., sec. 275, p. 882, in a discussion of antenuptial agreements, it is said: "By such a settlement or agreement the parties may define their property rights in property existing or after-acquired, and they may vary substantially property rights which would otherwise arise on their marriage by operation of law, superseding, in a sense, statutes on that subject. They cannot, however, vary the marital personal rights and duties that arise on marriage by operation of law." Section 288 of this text states; "Overreaching, or abuse of the confidential relationship between prospective spouses, makes an antenuptial settlement or agreement voidable. Such a settlement or agreement, to be enforceable, must be fair, equitable, and reasonable in view of all of the surrounding facts and circumstances * * *. (Citing cases.)" In section 290 it is said: "However, adequacy of the provision for the wife is to be considered in connection with the question as to whether the contract is fair, and inadequacy of such provision gives rise to a presumption of fraud vitiating the agreement. The question of the adequacy or inadequacy of the provision must be determined largely in view of the facts and circumstances existing in the particular case."

In view of our decision that the decree of divorce must stand,[4] the question of the validity of the antenuptial agreement as to the provisions for release of the rights of both parties in the property of the other, becomes a moot one. But this is not so as to the release of other statutory rights of the wife, purported to be released by the provisions of paragraph 11 of the agreement, above quoted. Even though it may not be apparent that the agreement was entered into by the husband in contemplation of a future divorce or separation, its terms obviously invite a divorce as a source of pecuniary profit to him. In common parlance he would have "everything to gain and nothing to lose" by bringing about such a condition of the marital relationship as would render divorce or separation proceedings by the wife imperative. If plaintiff's testimony is to be given credence, defendant has accomplished just that result. If, as a result of his conduct, she is compelled to separate from him, or if he chooses to separate from or desert her, she would relinquish the agreed right to share under his will. Were she compelled to institute divorce proceedings, she would relinquish such right, and in addition all claim to his support and the right to alimony suit money and support prescribed by statute in cases where a divorce is granted for the fault of the husband.

In Hilbert v. Hilbert, 168 Md. 364, 177 A. 914, 919,98 A.L.R. 1347, a similar contract was involved. The court said: "The parties to this suit undertook to enter into the antenuptial contract, to which reference has been made, by the terms of which it is provided, in paragraph 5: ``In the event that unhappy differences should arise between the parties hereto, resulting in separation between the parties, no claim or demand shall be asserted or attempted to be asserted by either party hereto as against the other for alimony, counsel fees or the like,' etc.

"The appellant did not press this question in the Court of Appeals, or, it seems, in the lower court, and suffice it to say such contracts are held to be void as against public policy * * *."

Considering all of the circumstances, and in view of the[5] inadequacy of the property settlement to provide money for her support and for the costs of suit, we must hold that paragraph 11 of the agreement is contrary to public policy and void. It follows that the trial court was justified in declaring it unenforceable in that respect, and, therefore, in awarding alimony and suit money to plaintiff. The sole question remaining for disposition is whether the trial court properly awarded such alimony in a lump sum, in view of the Montana statutes and decisions.

Section 5771, Revised Codes, provides: "Where a divorce is granted for an offense of the husband, the court may compel him to provide for the maintenance of the children of the marriage and to make such suitable allowance to the wife for her support during her life, or for a shorter period, as the court may deem just, having regard to the circumstances of the parties respectively, and the court may, from time to time, modify its orders in these respects; provided, however, that upon proof of the remarriage of a divorced wife, after the final judgment in a divorce action, the court must order a modification of the judgment by annulling the provisions of the judgment directing the payment of money for the support of the wife."

This statute clearly contemplates the allowance to the[6, 7] divorced wife of an amount suitable for her support during such period as the court may determine. The amount of the award is not a certain proportion of the husband's estate, but is to be determined by the equities of the case and the financial situation of the parties. Cummins v. Cummins, 59 Mont. 225,195 P. 1031. The award here was admittedly based upon the increase in the value of the husband's property during the period of the marriage, found by the court to be due, in part, to efforts of the wife. Section 5797, Revised Codes, provides: "All work and labor performed by a married woman for a person other than her husband and children shall, unless there is a written agreement on her part to the contrary, be presumed to be performed on her separate account." In construing this statute as to its effect on the common law rule, this court said, in Gates v. Powell,77 Mont. 554, 252 P. 377, 380: "At common law the husband, as a result of the marriage, was entitled to the services and earnings of his wife; and, even under statutes such as ours, enlarging the rights of married women, it is the duty of the wife, without compensation, to attend to all the ordinary household duties and labor faithfully in the advancement of her husband's interests. Thus the statute providing that the wife shall be entitled to her earnings for labor performed ``for a person other than her husband' does not change the rule respecting the services which she owes her husband as head of the family." See also Whitacker v. Whitacker, 52 N.Y. 368, 11 Am. Rep. 711; 41 C.J.S., Husband and Wife, sec. 17, p. 414.

It is well settled that in this jurisdiction alimony is in no way a property settlement, but is the provision made for the support of the wife, State ex rel. Tong v. District Court, 109 Mont. 418,96 P.2d 918, 921.

With reference to an award of alimony in a lump sum, this court said, in State ex rel. Tong v. District Court, supra: "This court has held on several occasions that it is inadvisable, except for special reasons and under special circumstances, to make an award of alimony in gross or in a lump sum. Bristol v. Bristol, 65 Mont. 508, 211 P. 205; Lewis v. Lewis, 109 Mont. 42,94 P.2d 211. In the first cited case this court used the following language * * *: ``In a case of this kind where no complaint is made, as here, as to the husband's industry and financial ability, and where the property consists of but one parcel, the sale of which, in order to satisfy the judgment for alimony, would probably be necessary, we think it the better practice to make a monthly, or other periodical, allowance, to the end that the court can, from time to time, modify its order in these respects should changed conditions or circumstances make it advisable or necessary.'"

In Lewis v. Lewis, supra, it is said [109 Mont. 42, 94 P.2d 213]: "Thus, while alimony in gross is authorized by the statute (Nuhn v. Nuhn, supra [97 Mont. 596, 37 P.2d 571]), the better practice is to provide a monthly or other periodical allowance unless its payment would be endangered by the husband's lack of industry or financial ability (Bristol v. Bristol,65 Mont. 508, 211 P. 205), or for some other compelling reason. Furthermore, if that danger can be obviated by requiring security, as provided by section 5772, Revised Codes, there are at least two reasons why a lump sum should ordinarily not be awarded. The first is that by so doing the court awards a definite judgment which, while intended primarily for the wife's support, is fixed without reference to her continuing need, so that she or her estate will have the benefit of it in spite of her remarriage, her acquisition of other property or income, or her death. The second is, assuming that by this award the court does not exhaust its power but can hereafter award further alimony by way of monthly or lump sum payments (see Bast v. Bast, 68 Mont. 69, 217 P. 345), and thus reserves the right to increase the alimony provision, it does, by an award in gross, to that extent deprive itself of the power to reduce the provision. Obviously, the court should, so far as possible, retain its power to modify the alimony provision either way, as circumstances warrant, in the interest of justice to both parties. It follows, therefore, that if monthly alimony can be secured in some way, a lump sum should not be awarded."

It is true that the Nuhn case is authority for the awarding of[8, 9] alimony in a lump sum, under the provision of section 5771. When the decisions in that case, and the Cummins and Bristol cases, supra, cited as authority, were written, section 5771, Revised Codes 1921, was in effect. This section was amended in 1935, by adding the proviso requiring the court to annul the provisions of the judgment requiring the payment of support money, upon proof of the remarriage of the divorced wife. This provision, and the benefits of it accruing to the husband, might be effectively nullified by the award of a lump sum. This reason might well have been added to those expressed in Lewis v. Lewis, supra, against the award of a gross amount or lump sum. We agree with the reasoning of the Lewis case, and think that it is applicable to the circumstances of this case. While the terms of an award of alimony or support to the wife are generally a matter within the discretion of the trial court, such discretion must be supported, we think, by evidence as to the circumstances of the particular case. An award of a lump sum should be supported by some impelling reason for its necessity or desirability. Such does not here appear. Both parties are comparatively young, and lived together as man and wife no longer than five years. The record does not indicate any danger of failure of the defendant to comply with any judgment directing periodical payments for plaintiff's support; if desirable, they could be assured by the impression of a lien upon his property toward that end. Nor does any other compelling reason appear for an award of a lump sum. We think that the intention of the statute would be better fulfilled by the awarding of periodical payments for the support of the plaintiff until changes in her status or circumstances might require a modification of the judgment. It is highly desirable, under the circumstances of this case, that the trial court retain effective jurisdiction to so modify the judgment, should subsequent events or circumstances require or indicate such modification. The award of periodical payments for the wife's support will provide substantial justice, present and future, on both sides.

We think that the holding in Detert v. Detert, 115 Mont. 313,142 P.2d 215, is not applicable to the facts of this case.

The cause is remanded with directions to modify the judgment by vacating the portion thereof directing the payment of a lump sum by defendant, and by directing, after a hearing, if necessary, the payment by defendant to plaintiff periodically, of such suitable allowance as the court may deem just for plaintiff's support (Sec. 6771, Rev. Codes), and the award of such costs and expenses of the trial as may be just and permitted by law. The judgment is in other respects affirmed.

Mr. Chief Justice Johnson and Associate Justices Morris and Angstman concur.