Narregang v. Narregang

WHITING, J. This is a divorce action, and it was tried and decree entered therein in the year 1909. The said decree was in favor of the plaintiff, and, among other things, granted to her alimony in a gross or lump sum. The original decree made no provision for the payment of this alimony in installments, gnd it all became due at once; but, on stipulation of the parties thereafter entered into, the court granted an extension of time for the payment of part of the amount due, and, through certain other orders, the time of payment of a’ part of said alimony was further extended, so that in January, 1912, a part of said alimony still remained unpaid. At that time the defendant, having learned of the marriage of plaintiff to a third party, petitioned the court, asking that he be relieved from the payment of that part of the alimony-then unpaid. The trial court denied this petition, and it is from the order denying such petition that this appeal is taken. Section 92 of'the Civil Code of this State 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.” Appellant contends that, under the above section, a trial court has jurisdiction to, and should, modify a decree for alimony, whenever changed conditions render such modification equitable and just, and that this can be done, whether the decree to be modified was one granting support by way of monthly or periodical allowances, or whether it be one granting such support or alimony in a gross sum. Respondent contends that a decree allowing alimony in a gross sum is to be treated the same as any other money judgment, and will .be subject to change only under the rules governing other money judgments. In the view which we take of this case it becomes unnecessary for us to determine this question. While there are certain matters that must be taken into consideration by the court in granting any allowance for support, whether it be one of a gross sum or one payable in periodical installments, -yet those matters which should' be considered in determining the amount of an allowance in gross must of necessity [467] differ widely from those which should be considered in arriving at a just periodical allowance. In fixing a periodical allowance, the court does so with no thought of the changes which the future may bring about, knowing that, under the law,' the decree may be adjusted to meet the changed conditions, if there be changes. The court thinks only of the present conditions of the parties, -and determines what would be equitable and just if those conditions continue. Thus, while the court would take into- consideration the age of the parties as it might bear upon their physical ability to supply the needs of life, the -court, in determining the amount of a continuing allowance, would not, for any purpose, take into consideration either -party’s natural life -expectancy, as it would be absolutely immaterial in the determination of a just present allowance; and, while the court would understand -that, where the decree granted an absolute divorce, either party might and possibly would remarry, yet this fact would in no manner enter into the question of the rightful amount of a periodical allowance. When fixing the amount which should be decreed in gross as an allowance for support, the court, expecting that the decree for alimony will be paid before there will come any changed conditions, and expecting this 'to be the final adjustment of the financial rights and obligations of the parties, not only takes into consideration the present earning capacity of each party, but his or her probable future earning capacity. It takes into consideration -the probable duration of the life of each, the chance of the remarriage of one or both parties, the possibilities of sickness, and the fact that either or -both, through inheritance or -other good fortune, may acquire a further estate. After weighing all conditions, both existing and anticipatory, that might properly be considered in arriving at the determination of that sum of-money which will be a fair adjustment of the rights and obligations of -the parties, the court determines the amount which, as a gross allowance, would, under the circumstances, - be just and equitable, and, having decided that it would be in furtherance of public welfare and to the interest of the parties themselves so to do, it decrees a gross allowance. It may chance that th-e former wife or husband dies within a short period after decree granted. If so, it results in the amount decreed being in excess of what would have been paid under any reasonable periodical allowance. It may happen, as in the case at bar, that th-e former [468] wife remarries, and, through such remarriage, obtains support, such as, in case the decree had made a periodical allowance, would justify the trial court in terminating such allowance. Thus again, if a decree fixing an allowance in gross has been- granted, it may result in the former wife receiving much more than she would have received under a .periodical allowance. There can be no difference in principle between a case where there is a remarriage than where there is an untimely death, unless the fact that there was to be a remarriage was known to the wife prior to the divorce. Upon the other hand, neither party may remarry, and both may live out a span of life far' in excess of that to be anticipated under the tables of mortality. The former wife may become sick or otherwise physically unable to care for herself, or the husband may become possessed of great wealth. Under such circumstances a decree of a gdoss allowance for support would prove to -the financial advantage of the former husband. It certainly tends to the promotion of the public welfare, and usually to the welfare of the parties to a divorce action, if the decree that grants an absolute divorce also terminates all relations and duties of a financial nature existing between the parties, and it is this fact that justifies such a decree. If it were not expected that there would be a final termination of the rights and obligations of the parties, so far as the support of the wife is concerned, we doubt if any court would ever grant a gross allowance. The parties to this action must have considered that the decree was justified by the facts proven, and by the other matters, anticipatory in nature, of which the trial court would take cognizance; otherwise, there would have been an appeal. Nothing has occurred that could not have been anticipated by the trial court, and therefore considered by him in rendering the decree, and surely the judge who granted the decree, who is the judge of whom the modification was sought knew what he took into consideration when granting.the decree. The decree was in all things fair and just, and the alimony therein fixed would have been paid long before respondent’s remarriage, had its payment not been stayed at appellant’s request. 'Conceding- that it was within the discretion of the trial court to modify the allowance which it .had made, though it was in a gross sum, there was no abuse of discretion in its refusal so to do. [469] The order of the trial court is affirmed.