Opinion
No. 36307.
January 27, 1947. Suggestion of Error Overruled February 24, 1947.
DIVORCE.
A divorce decree directing payment, "by way of present alimony, the sum of $250, to be paid $50 on the first day of each month," and expressly reserving question of future alimony, was intended as temporary alimony for five months, so that court had jurisdiction to award further alimony under changed conditions (Code 1942, sec. 2743).
APPEAL from the chancery court of Hinds county. HON. V.J. STRICKER, Chancellor.
Edwards McDonald, of Jackson, for appellant.
The court had authority to decree divorce absolute and to postpone the question of permanent alimony.
Clark v. Clark, 133 Miss. 744, 98 So. 157; Code of 1942, Sec. 2743.
The court had authority to grant a divorce absolute and make all orders touching the maintenance and alimony of the wife, or any allowance to be made to her.
Clark v. Clark, supra; Code of 1942, Sec. 2743.
There being no facts in evidence concerning decree granting divorce and present alimony and expressly reserving question of future alimony for further consideration and decree, if and when further alimony should be applied for by the apellant, decree must be presumed to have been correctly given.
Tate v. Colvard, 174 Miss. 624, 165 So. 433.
Where temporary and permanent alimony commuted to gross sum, court should consider fully any and all contingencies which might arise, and the record affirmatively shows that this was not done.
The court had authority to make new orders or change the decree touching the care and maintenance of the wife as the facts and circumstances required.
Clark v. Clark, supra; Walters v. Walters, 180 Miss. 268, 177 So. 507; Code of 1942, Sec. 2743.
The $250 allowance in this case was so inadequate as to make it apparent that it was not a lump sum payment of alimony.
Gresham v. Gresham, 198 Miss. 43, 21 So.2d 414; Ramsay v. Ramsay, 125 Miss. 185, 87 So. 491.
Where the wife has a right in alimony proceedings and has no funds to bring petition, the court may award compensation to wife for attorney's fees.
Walters v. Walters, supra.
For the purpose of this appeal from an order sustaining a demurrer it must be taken as true that appellee is employed at a salary of more than $300 per month, that the financial condition of appellant has changed adversely since the original decree was granted and that every material allegation in the petition is true.
Crenshaw-Gary Lumber Co. v. Norton, 111 Miss. 720, 72 So. 140.
A final decree should not leave open any judicial question to be determined by the parties or officers charged with the execution, if their nature is such as is likely to eventuate in dispute; reservation for further directions should be made, if impossible safely to do otherwise.
Todd v. Todd, 197 Miss. 819, 20 So.2d 827.
Where a decree rendered on final hearing does not include matters of import in the cause, and necessary to its complete adjudication, the court in which such cause is pending, under the rules of chancery practice, may rectify the error of omission and embody such matters in the final adjudication by a supplemental decree, on petition or motion therefor.
Oliver Finnie Grocery Co. et al. v. Bodenheimer et al., 77 Miss. 415, 27 So. 613.
Where the decree is intended to be interlocutory rather than final, unless its interlocutory character would otherwise appear, there should be inserted a reservation of the matters that are to be further dealt with, and such reservations being made, the parties must see to it that the reserved matters are thereafter suitably docketed and further proceeded with in due season according to the nature of the reservations.
Griffith's Mississippi Chancery Practice, Sec. 627, p. 720.
George L. Teat, of Jackson, for appellee.
When the alimony awarded a wife is commuted to a lump sum to be paid presently, the court cannot after the term, under Code of 1906, Section 1673, authorizing the court on petition to change the decree, modify the alimony awarded. Such a decree is final after the term at which it is rendered.
Guess v. Smith, 100 Miss. 457, 56 So. 166.
Under Section 1415, Hemingway's Code (Section 1673, Code of 1906, Section 2743, Code of 1942), empowering the court to change alimony, where the circumstances of the parties have changed, a provision in the original decree retaining right to further change alimony is no more than the authority granted by the statute, and comes under it.
See Clark v. Clark, 133 Miss. 744, 98 So. 157.
See also Williams v. Williams, 127 Miss. 627, 90 So. 330; Crawford v. Crawford, 158 Miss. 382, 130 So. 688.
A decree for separate support and maintenance obtained by the wife is not subject to modification, except on evidence showing substantial change in circumstances of parties.
Malone v. Malone, 159 Miss. 138, 131 So. 870; Code of 1942, Sec. 2743.
In September, 1945, the appellant was granted a divorce from the appellee by the court below, the decree reciting that, "It is further adjudged that defendant, Eugene Jean Cazenave, pay to the complainant, by way of present alimony, the sum of $250.00, to be paid $50.00 on the first day of each month, beginning October 1, 1945, together with the sum of $75.00 as solicitor's fees, and all costs of this suit, and that the matter of future alimony be reserved for further consideration and decree, if and when further alimony should be applied for by the complainant."
In May, 1946, the appellant petitioned the court for an additional allowance of alimony, alleging that, "Her financial condition has changed adversely since the above decree was rendered in that very shortly after it was rendered petitioner suffered a physical illness from which she has not recovered, and that at the present time, petitioner is sick and unable to work."
A demurrer to this petition, on the ground that the alimony allowed in the decree of divorce "was a commuted and lump sum," intended to be permanent, which the Court is without authority now to modify, was sustained and the petition was dismissed. It is clear from the terms of the decree that the alimony awarded was not intended to be permanent, but only temporary, covering the five months beginning October 1, 1945. Consequently, the court below had full jurisdiction to award the appellee further alimony if changed conditions so required, both under the terms of the decree, and the provisions of Sec. 2743, Code 1942.
Reversed and remanded.