Nielsen v. Nielsen

HENRIOD, Justice:

Appeal from a judgment modifying a divorce decree. Affirmed with costs to defendant.

The parties were married in 1947, four children being horn issue thereof. They were divorced in 1960, and plaintiff was awarded custody of the children and “$100 per month for their support and maintenance.” About ten years later, at and after hearing had on a petition filed by plaintiff, and after one of the children had attained her majority five years before, the parties stipulated in writing 1) that defendant was in arrears $1850 on the support money “previously ordered by the court” in 1960, and 2) that defendant “claims that he should be allowed a credit of . . . $25 per month” for the five-year period, and 3) that commencing in March 1971 defendant would pay $62.50 per month for each of the three remaining minor children (or $187.50 per month as compared to the original $100 per month for the four of them).

The hearing mentioned was had on February 9, 1971, and continued to March 23, 1971, at which time the parties were sworn and “thereafter” entered into the stipulation referred to, and “based upon the testimony adduced at the hearing . . .and the stipulation thereafter entered into . and the court being deemed fully advised in the premises” entered judgment crediting defendant with the $25 per month for the previous five years and increasing the child support amount by $87.50 per month.

It is quite obvious that after the hearing and sworn testimony, the court properly exercised its continuing jurisdiction prerogative based on evidence and changed circumstances, and hence did not err in adjusting the equities by allowing the credit and upping the award.

Plaintiff’s only point on appeal has to do with the credit allowed. A number of authorities are cited to the effect that alimony and support awards are not extinguished automatically, once accrued. We have no quarrrel with those authorities but do not consider them dispositive here. Plaintiff cites Austad v. Austad, 2 Utah 2d 49, 269 P.2d 284 (1954), for that proposition, but that case also says that ordinarily alimony is chopped off and does not continue to accrue after marriage, — and the same conclusion logically would seem to follow if an award of $25 per month each had been given for four children, and one of them attained his majority, where the support obligation, like alimony, comes to an automatic termination. We need not decide that question here. It would be to question the lower court’s intelligence to urge in the instant case that his crediting of the amount for which the court felt there really was no obligation to pay on the minor’s reaching its majority in the instant case, was beyond his jurisdiction in calculating future responsibility of defendant. It is obvious what the court intended to do, and, in the interest of the equities, he could have adjusted the future payments so that by indirection there would have been no occasion to question the jurisdiction, by the simple device of awarding future payments to absorb any questionable sums based on accrued amounts. We choose to recognize, without such niceties, the obvious intent of the trial judge, — and hence we affirm.

This case reflects the accepted principle that the trial judge, having continuing jurisdiction of domestic relations matters, having the parties before him and evidence in front of him, elicited under the sanctity of an oath, is better structured to wear the robe of Solomon than we who sit more frigid before the cold record on appeal.

ELLETT and CROCKETT, JJ., concur.