McVey v. McVey

137 P.2d 971, 60 Ariz. 380, 1943 Ariz. LEXIS 102

• Court: Arizona Supreme Court
• Decided: June 1, 1943
• Docket: Civil No. 4544.
• Status: Published

Opinions

ROSS, J.

In the year 1928 the parties hereto were relieved of their marital relations by a divorce decree entered in the Superior Court of Maricopa County, Arizona, in an action in which John H. McVey was plaintiff and Julia Gr. McVey was defendant and cross-complainant. The ground charged and upon which the divorce was granted to the wife on her cross-complaint was the adultery of the plaintiff. In the decree, the court awarded the custody and care of their only child Julia Anne, then 15 years of age, to the mother and directed the plaintiff to pay to her for her and the child’s support the sum of $150 per month “until fur ther order of this court. ’ ’ The plaintiff made payments to defendant in part only until June, 1931, since which time he has made no payments.

Julia Anne became of age on March 6, 1934.

On January 21, 1942 the plaintiff filed his second amended petition in said action asking that the judgment requiring him to pay defendant $150 per month be modified to relieve him entirely, on the ground that the judgment should have been segregated showing what part thereof was for the child and what part for the mother. On this point the court ruled against plaintiff’s contention and held the judgment as originally entered was proper and valid, and the plaintiff has appealed therefrom.

Section 2187, Revised Code of 1928, now section 27-810, Arizona Code 1939, provides that the final decree of divorce

“may . . . direct the husband to pay to the wife such amounts as may be necessary for the support and maintenance of the wife, and the minor children of the parties whose custody may be awarded to the wife, as may be necessary or proper, and may decree that said amount may be paid in one sum or in instalments ? >

The judgment conformed with this statute and is one the court had jurisdiction to enter.

The judgment, however, after the daughter Julia Anne became of age (March 6, 1934) was not susceptible of enforcement, in terms, for the reason that the father was no longer liable for her support and maintenance and it failed to state what portion of it was for the wife’s support and what portion for the support of the child. The court had not lost jurisdiction of the case as may be seen from the following statutory provision, found in section 2188, Revised Code of 1928, now section 27-811, Arizona Code 1939:

“The court may from time to time after the entry of final decree, on petition of either party, amend, revise and alter such portions of the decree as relate to the payment of money for the support and maintenance of the wife .... ”

Under this section the limit of time in which the court may “amend, revise and alter” the portion of the decree relating to the support and maintenance of the wife is controlled by the wife’s status and needs. If she is still unmarried and is in need of support when the application to amend is heard by the court, which appears to be the case here, the court is empowered to grant her appropriate relief.

The defendant resisted plaintiff’s application for relief from the judgment and asked the court to modify the judgment theretofore entered to conform with the changed conditions, and the court after hearing the parties made and entered the following decree:

“IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the plaintiff, John H. McVey, pay to the defendant, Julia G. McVey, as alimony, the sum of $100.00 per month instead of the $150.00 per month provided in the original decree as and for alimony and support and maintenance of the minor child, Julia Anne McVey, in all other particulars said decree to remain in its original tenor, the first payment in the. reduced amount to begin March 15, 1942, and to continue thereafter on the 15th day of each succeeding month until the further order of the court, said payments to be made to the Clerk of this Court.”

While plaintiff now resides in Florida and the defendant in Pennsylvania, both, in person, submitted their troubles to the same court that rendered the original judgment. We think the court had jurisdiction of both the subject matter and the parties and power to render the judgment it did. No showing is made by plaintiff that the wife is able to and should support herself or that she is not as much entitled to support now as she was when judgment was given in her favor.

We think the judgment should be affirmed, and it is so ordered.

STANFORD, J., concurring..