[434]*434McFADDEN, Justice.
This appeal is the most recent chapter in extended litigation between the parties who were formerly husband and wife. Their marriage was dissolved by a decree of divorce entered in 1954, the judgment granting .the divorce, being affirmed on appeal to this court the same year. Jordan v. Jordan, 75 Idaho 512, 275 P.2d 669. Subsequent to that time there have been motions for modification of that judgment filed by both parties. In the interests of clarity, the parties will be referred to by name, and the various motions designated by the name of the moving party and date of the motion.
After entry of the 1954 decree, Mr. Jordan, in November, 1957, submitted to the court his motion to modify the original decree of divorce, to be relieved of his obligation to pay the sum of $175.00 per month to Mrs. Jordan for her maintenance and support. This 1957 motion of Mr. Jordan culminated in an order of March, 1958, which modified the pertinent provisions of the decree of divorce, to read as follows:
“That the plaintiff [Mr. Jordan] is hereby required to pay to the defendant [Mrs. Jordan] for her maintenance and support the sum of $175.00 per month, payable monthly on the 6th day of each and every month beginning February 6, 1954 and ending on the 6th day of April, 1959, provided, however, upon adequate showing of the defendant of her inability to support herself, the Court shall, upon proper representation on or before the 6th day of April, 1959, reconsider the question of alimony.”
In March, 1959, Mrs. Jordan, by her attorney, moved for a second modification of the divorce decree. In her motion, among other things, she sought a continuation of the alimony awarded by the decree of divorce. In opposition to Mrs. Jordan’s 1959 motion, Mr. Jordan submitted a motion to dismiss. Hearing was had on these motions, and the court entered an order in August, 1960, wherein the court found Mrs. Jordan’s motion to continue the alimony payments to he without merit, and dismissed her motion for modification. The effect of the dismissal of Mrs. Jordan’s 1959 motion was to terminate all alimony payments as of April 6, 1959. No appeal was taken from the order dismissing Mrs. Jordan’s 1959 motion for modification.
The next stage of this litigation occurred three years later, when Mrs. Jordan, representing herself, in October, 1963, filed an instrument entitled “Motion for Modifi[435]*435cation of Decree”, wherein she moved “ * * * the Court for modification of the now-existing Modification of Decree, as effected August 22, 1960, * * * Mrs. Jordan did not accompany this motion with any affidavit, hut recited eight separate reasons why it should be granted, the first of which asserts:
“That plaintiff’s [Mr. Jordan’s] motion to modify the then-existing decree, insofar as it contends the ability of defendant, movant here [Mrs. Jordan], to secure a teaching position, was based upon misrepresentation, * * * Thereafter is set out five sub-paragraphs, which will be discussed at greater length hereafter in this opinion.
The second reason for modification pertains to an assertion that Mr. Jordan did not submit all information to the Court concerning his relationship with his then attorneys and particularly in so far as exchange of professional fees was concerned. By the third reason she asserts failure of Mr. Jordan to fully inform the court as to certain insurance policies. The fourth pertains to matters before the court dealing with grounds for divorce, as does the fifth ground. The sixth asserts that by reason of claimed “manipulation” she has lost certain enterprises. The seventh asserts refusal of Mr. Jordan to submit his books for audit, claiming a greater worth on his part than submitted to the court. The eighth ground pertains to the condition of her health.
Examination of the last seven of the asserted reasons set forth by Mrs. Jordan discloses that they each pertain to facts before the court at the time of the initial hearing on the divorce action, or to issues before the court at the time of the hearing of Mr. Jordan’s 1957, motion for modification.
In opposition to Mrs. Jordan’s October, 1963, motion, Mr. Jordan, in November, 1963, moved for a dismissal of Mrs. Jordan’s motion on the ground it failed to state any basis for modification, and he also moved to strike her motion as failing to state any claim or right upon which relief could be based. He asserts that there is no alimony award upon which a modification can be made, and the issue has been determined and the cause is res judicata, the time for appeal having lapsed.
The trial court granted Mr. Jordan’s, November, 1963, motion to dismiss and motion to strike, and Mrs. Jordan appealed from that order of the court.
Six Assignments of error have been made by Mrs. Jordan. These are directed to the trial court’s granting of Mr. Jordan’s motion to dismiss. It is asserted that the trial court erred in determining that the questions presented by her 1963 motion for modification was res judi[436]*436cata, and in failing to consider what she asserts to be extrinsic fraud. She also claims error in the court’s not giving consideration to conditions set forth in previous motions. She complains of delays involved in having the issues presented in the trial court and asserts it was necessary again to consider the issues presented at the hearing which culminated in the trial court’s March, 1958, order. Throughout the assignments of error there are statements asserting “extrinsic fraud”, “collateral forces”, and “manipulations” by her former husband, to her detriment.
First, it must be pointed out, that these assignments of error fail to comply with the appellate rules of this court that require an appellant’s brief to contain “ * * a distinct enumeration of the assignments of error. Assignments of error shall not be redundant.” Appellate Rule 41(2) as amended. However, it is apparent that Mrs. Jordan claims error was committed by the trial court when it determined it had no authority to modify the decree after the initial award of alimony had subsequently been terminated on a day certain. It is also apparent she is claiming that there was fraud perpetrated. The record before this court contains no transcript of any of the previous proceedings, nor does it contain any affidavits on her part specially pointing to the areas of the asserted “fraud”, “manipulations” and “collateral forces”.
The principal issue presented is whether the trial court had jurisdiction to grant Mrs. Jordan’s October, 1963, motion for modification. The original decree had provided for $175.00 per month alimony for her support. Subsequently this decree was modified and these support payments were terminated on Mr. Jordan’s motion as of April, 1959. Inherent in this issue is the question whether a trial court possesses the authority, by an order of modification, to terminate the award of alimony previously decreed. A comparable problem faced the Supreme Court of California and was resolved by that court in the case of McClure v. McClure, 4 Cal.2d 356, 49 P.2d 584, 587, 100 A.L.R. 1257 (1935) to the effect that under the provisions of California Civil Code § 139, the court was authorized to terminate finally an award of alimony previously directed. Therein the Court stated:
Free access — add to your briefcase to read the full text and ask questions with AI
[434]*434McFADDEN, Justice.
This appeal is the most recent chapter in extended litigation between the parties who were formerly husband and wife. Their marriage was dissolved by a decree of divorce entered in 1954, the judgment granting .the divorce, being affirmed on appeal to this court the same year. Jordan v. Jordan, 75 Idaho 512, 275 P.2d 669. Subsequent to that time there have been motions for modification of that judgment filed by both parties. In the interests of clarity, the parties will be referred to by name, and the various motions designated by the name of the moving party and date of the motion.
After entry of the 1954 decree, Mr. Jordan, in November, 1957, submitted to the court his motion to modify the original decree of divorce, to be relieved of his obligation to pay the sum of $175.00 per month to Mrs. Jordan for her maintenance and support. This 1957 motion of Mr. Jordan culminated in an order of March, 1958, which modified the pertinent provisions of the decree of divorce, to read as follows:
“That the plaintiff [Mr. Jordan] is hereby required to pay to the defendant [Mrs. Jordan] for her maintenance and support the sum of $175.00 per month, payable monthly on the 6th day of each and every month beginning February 6, 1954 and ending on the 6th day of April, 1959, provided, however, upon adequate showing of the defendant of her inability to support herself, the Court shall, upon proper representation on or before the 6th day of April, 1959, reconsider the question of alimony.”
In March, 1959, Mrs. Jordan, by her attorney, moved for a second modification of the divorce decree. In her motion, among other things, she sought a continuation of the alimony awarded by the decree of divorce. In opposition to Mrs. Jordan’s 1959 motion, Mr. Jordan submitted a motion to dismiss. Hearing was had on these motions, and the court entered an order in August, 1960, wherein the court found Mrs. Jordan’s motion to continue the alimony payments to he without merit, and dismissed her motion for modification. The effect of the dismissal of Mrs. Jordan’s 1959 motion was to terminate all alimony payments as of April 6, 1959. No appeal was taken from the order dismissing Mrs. Jordan’s 1959 motion for modification.
The next stage of this litigation occurred three years later, when Mrs. Jordan, representing herself, in October, 1963, filed an instrument entitled “Motion for Modifi[435]*435cation of Decree”, wherein she moved “ * * * the Court for modification of the now-existing Modification of Decree, as effected August 22, 1960, * * * Mrs. Jordan did not accompany this motion with any affidavit, hut recited eight separate reasons why it should be granted, the first of which asserts:
“That plaintiff’s [Mr. Jordan’s] motion to modify the then-existing decree, insofar as it contends the ability of defendant, movant here [Mrs. Jordan], to secure a teaching position, was based upon misrepresentation, * * * Thereafter is set out five sub-paragraphs, which will be discussed at greater length hereafter in this opinion.
The second reason for modification pertains to an assertion that Mr. Jordan did not submit all information to the Court concerning his relationship with his then attorneys and particularly in so far as exchange of professional fees was concerned. By the third reason she asserts failure of Mr. Jordan to fully inform the court as to certain insurance policies. The fourth pertains to matters before the court dealing with grounds for divorce, as does the fifth ground. The sixth asserts that by reason of claimed “manipulation” she has lost certain enterprises. The seventh asserts refusal of Mr. Jordan to submit his books for audit, claiming a greater worth on his part than submitted to the court. The eighth ground pertains to the condition of her health.
Examination of the last seven of the asserted reasons set forth by Mrs. Jordan discloses that they each pertain to facts before the court at the time of the initial hearing on the divorce action, or to issues before the court at the time of the hearing of Mr. Jordan’s 1957, motion for modification.
In opposition to Mrs. Jordan’s October, 1963, motion, Mr. Jordan, in November, 1963, moved for a dismissal of Mrs. Jordan’s motion on the ground it failed to state any basis for modification, and he also moved to strike her motion as failing to state any claim or right upon which relief could be based. He asserts that there is no alimony award upon which a modification can be made, and the issue has been determined and the cause is res judicata, the time for appeal having lapsed.
The trial court granted Mr. Jordan’s, November, 1963, motion to dismiss and motion to strike, and Mrs. Jordan appealed from that order of the court.
Six Assignments of error have been made by Mrs. Jordan. These are directed to the trial court’s granting of Mr. Jordan’s motion to dismiss. It is asserted that the trial court erred in determining that the questions presented by her 1963 motion for modification was res judi[436]*436cata, and in failing to consider what she asserts to be extrinsic fraud. She also claims error in the court’s not giving consideration to conditions set forth in previous motions. She complains of delays involved in having the issues presented in the trial court and asserts it was necessary again to consider the issues presented at the hearing which culminated in the trial court’s March, 1958, order. Throughout the assignments of error there are statements asserting “extrinsic fraud”, “collateral forces”, and “manipulations” by her former husband, to her detriment.
First, it must be pointed out, that these assignments of error fail to comply with the appellate rules of this court that require an appellant’s brief to contain “ * * a distinct enumeration of the assignments of error. Assignments of error shall not be redundant.” Appellate Rule 41(2) as amended. However, it is apparent that Mrs. Jordan claims error was committed by the trial court when it determined it had no authority to modify the decree after the initial award of alimony had subsequently been terminated on a day certain. It is also apparent she is claiming that there was fraud perpetrated. The record before this court contains no transcript of any of the previous proceedings, nor does it contain any affidavits on her part specially pointing to the areas of the asserted “fraud”, “manipulations” and “collateral forces”.
The principal issue presented is whether the trial court had jurisdiction to grant Mrs. Jordan’s October, 1963, motion for modification. The original decree had provided for $175.00 per month alimony for her support. Subsequently this decree was modified and these support payments were terminated on Mr. Jordan’s motion as of April, 1959. Inherent in this issue is the question whether a trial court possesses the authority, by an order of modification, to terminate the award of alimony previously decreed. A comparable problem faced the Supreme Court of California and was resolved by that court in the case of McClure v. McClure, 4 Cal.2d 356, 49 P.2d 584, 587, 100 A.L.R. 1257 (1935) to the effect that under the provisions of California Civil Code § 139, the court was authorized to terminate finally an award of alimony previously directed. Therein the Court stated:
“The power on the trial court by section 139, Civil Code, is properly described as a grant of continuing jurisdiction for the reason that the court is empowered under said section to make orders for the support of the wife which shall not be final, but subject to modification. But where the court makes an order releasing the husband permanently from liability for alimony, [437]*437and thefeby indicates an intent that the order shall be final and not subject to modification, it is not such an order as may be modified under section 139, Civil Code, by thereafter imposing liability for alimony.”
This decision of the California Court was decided under the then existing provisions of the California law comparable to I.C. § 32-706.
The authority of a trial court to modify its decree of divorce concerning alimony is to be found in the application of I.C. § 32-706, which authorizes a modification of its decree in the event of an award of alimony. In McDonald v. McDonald, 56 Idaho 444, 55 P.2d 827, this Court held that where the initial decree did not award alimony, absent an appeal from the decree, and after lapse of the statutory time for modification or amendment of the decree, a trial court is not authorized under the law to entertain a petition to modify the provisions of that decree. See: Annot: 83 A.L.R. 1248; Mathers v. Mathers, 42 Idaho 821, 248 P. 468. By analogy, the same situation is applicable to the case at bar. By order of the trial court, all alimony payments ceased after April, 1959. No appeal was taken from that order, and the statutory time for a modification or amendment thereof has expired. We agree with the conclusions reached by the Supreme Court of California in McClure v. McClure, supra, that under such situation, where the time for amendment has expired, and no appeal taken, there is no residual authority of the trial court later to modify the decree terminating alimony payments. See also: Garver v. Garver, 102 Ohio St. 443, 133 N.E. 551 (1921); Greer v. Greer, 31 Cal. App. 39, 87 P.2d 388 (1939); Grenall v. Grenall, 169 Cal.App.2d 748, 337 P.2d 896 (1959); Annot. 100 A.L.R. 1262.
The trial court was thus correct in its ruling granting Mr. Jordan’s November, 1963, motion to dismiss. The previous order terminating the alimony payments having become final, the trial court was without power to modify it. Mrs. Jordan’s, October, 1963, motion to modify having been properly dismissed, it is unnecessary to consider the propriety of the order of the trial court granting Mr. Jordan’s motion to strike.
Another issue presented by this appeal deals with the first reason set forth by Mrs. Jordan in her October, 1963, motion for modification. She asserted that Mr. Jordan’s 1957, motion for modification of the alimony provisions of the decree of divorce insofar as it contended she was able to secure a teaching position, was based upon misrepresentation. She asserts that Mr. Jordan caused her application for a teaching position to be withdrawn from the files of the school, making it impossible for her to secure employment; that she had no [438]*438knowledge of this; that all parties knew only one application is submitted to any given school; that she suffered a loss of salary by reason of such actions. By her assignments of error Mrs. Jordan asserts that the trial court failed to consider such facts which she claims to constitute extrinsic fraud and to have erred in granting Mr. Jordan’s motion to dismiss and strike. As we understand her position, in effect, Mrs. Jordan is contending that fraud was practiced upon the court and upon her by Mr. Jordan at the time of the hearing on Mr. Jordan’s 1957 motion for modification; that by reason of such fraud her 1963 motion, to modify the court order granting Mr. Jordan’s 1957 motion, should have been granted.
I.R.C.P. 9(b) provides: “In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. * * * ” I.R.C.P. 7(b) (1) states: “An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. * * * ” It is our conclusion that the allegations contained in her 1963 motion, fail to meet the requirements of particularity. Assuming all the allegations to be true, it cannot be determined from her motion that such fraud was practiced on the court as to vitiate the proceeding had' on Mr. Jordan’s 1957 motion for modification, keeping in mind that after the hearing-on Mr. Jordan’s 1957 motion, the matter of alimony and continuance of an awardi was again heard in June, 1960, on Mrs. Jordan’s 1959, motion to modify the decree.. From the allegations in her present motion-it cannot be determined but what the facts, upon which she relies were available to her at that time. No record of the proceedings, of either of these hearings has been submitted to this court showing that the allegations of her present motion were not presented to the trial court. Presumptions are-in favor of the regularity and validity of the action of the trial court where the record is silent. Hartenbower v. Mutual BenLife Ins. Co., 67 Idaho 254, 175 P.2d 698. As stated in Judy v. Reilly Atkinson & Co., Inc, 59 Idaho 752, 757, 87 P.2d 451:
“In Hill v. Porter, 38 Idaho 574, 223 P. 538, sec. 4 of the syllabus is as follows:
“ 'It is presumed that the decree of" a district court is regular and valid,, and the burden of establishing error is. on the party alleging it.’ ”
In Baldwin v. Mittry, 61 Idaho 427, 429, 435, 102 P.2d 643, this court stated :
“ * * * The rule would seem to be-that error is never presumed on appeal,, and since the appellate court need not: search the record for possible errors; [439]*439the burden of showing it is on the party-asserting it, or as sometimes stated, the burden of showing error affirmatively is upon the appellant, (citing cases.)”
See also: Clear v. Marvin, 86 Idaho 87, 383 P.2d 346, and cases therein cited.
It is our conclusion that appellant failed to sustain the burden on her part of showing error by the trial court, and its order of dismissal is hence affirmed.
Subsequent to the appeal being taken, Mrs. Jordan sought to amend one of the •paragraphs of her October, 1963, motion for modification. It being determined that the trial court did not err in dismissing this motion, no purpose would now be served ' by granting such an amendment at this ■ time, and her application therefor is denied.
No costs allowed.
KNUDSON, C. J., SMITH, J., and 'THOMAS, D. J., concur.