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eBook details

• Title: State Ex Rel. Tong v. District Court Et Al.
• Author : Supreme Court of Montana
• Release Date : January 06, 1939
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 67 KB

Description

Divorce ? Allowance of Alimony in Gross ? Award Final After Time for Appeal Expired ? Award in Gross Generally not Advisable ? Presumption of Retention of Jurisdiction ? Writ of Supervisory Control ? When Writ Does not Lie to Review Order Dismissing Petition for Allowance of Appeal Money and Maintenance During Appeal. Divorce ? Dismissal by District Court of Petition of Divorced Wife for Costs of Appeal and for Maintenance ? Supervisory Control Writ ? Absence of Evidence from Record ? Supreme Court not in Position to Determine Whether Discretion Abused. 1. On application for writ of supervisory control to set aside an order of the district court dismissing the petition of a divorced wife for allowance of costs of appeal from the decree and maintenance - Page 419 during appeal, after hearing, the supreme court, in the absence of a transcript of the testimony introduced at the hearing, is in no position to determine whether the trial court abused its discretion in making the order. Same ? Appeal from Decree Absolute ? Allowance of Expenses Incident to Appeal Discretionary With Trial Court. 2. While the right of a wife to appeal from an award of alimony in a divorce proceeding is absolute and fixed by law, the matter of allowance for expenses incident to the appeal and of maintenance during appeal is discretionary with the trial court. Same ? Award of Alimony in Lump Sum Bars Appeal ? Right to Apply for Modification of Decree Independent Right. 3. Where plaintiff wife in a divorce suit accepts an award of alimony in a lump sum she is barred from appealing from the award, but her right of appeal and her right to apply to the trial court for modification of the decree under section 5771, Revised Codes, are independent rights based upon different statutes, the former right being limited to a certain time, and the latter being dependent upon conditions and circumstances. Same ? Award of Alimony in Gross Generally not Advisable. 4. Except for special reasons and under special circumstances the making of an award of alimony in gross or in a lump sum is not advisable, the better practice being to make a monthly or other periodical allowance, to the end that the trial court can, from time to time, modify its order to meet changed conditions or circumstances. Same ? Alimony not Property Settlement. 5. Alimony is in no way a property settlement, but is the provision made for the support of the wife, which continues so long as her need exists and so long as the husband is able to pay. Same ? Award of Alimony in Gross not Subject to Modification After Expiration of Time for Appeal, When. 6. Where the district court awards alimony in gross, either upon an agreement of the parties or after a hearing, upon a full, fair and honest disclosure of all conditions and circumstances, the award becomes final after expiration of the time for appeal, and is not subject to modification under the provisions of section 5771, Revised Codes, provided the decree indicates that the award is final and relieves the husband of all future obligation to support. Same ? Award of Alimony in Lump Sum ? Presumption of Retention of Jurisdiction to Modify Decree ? Petition for Modification Available to Wife, Writ of Supervisory Control Does not Lie. 7. Where the decree in a divorce action in awarding alimony in the sum of $750, payable in three monthly installments, did not in clear and unequivocal language indicate that it was final in the sense that it relieved the husband from further obligation to support, the presumption obtained that the court retained jurisdiction to modify the decree under section 5771, Revised Codes; hence the remedy by petition for modification of the decree was available to relatrix applying for writ of supervisory control to annul an order dismissing her petition for allowance of costs of appeal and maintenance during appeal, and the writ therefore did not lie. - Page 420

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