Opinion
No. 7944.
Decided June 16, 1953.
Proceeding to modify a decree, granting petitioner a divorce from her husband, by increasing the amount of money awarded thereby for support of the parties' four minor children. From an order of the Third Judicial District Court, Salt Lake County, increasing the amount of support money from $100 to $140 monthly, the divorced husband appealed. The Supreme Court, CROCKETT, J., held that evidence that appellant's average monthly take home pay during 15 months since the divorce for work on the same job at the same rate as at the time of the divorce was $309.28, as compared with $329.05 for twelve months before the divorce, and that the children, ranging in age from two to twelve years at the time of the divorce, were 18 months older, was insufficient to warrant modification of the decree on the ground of substantial change in circumstances, though petitioner could not fully support the children on the monthly amount awarded thereby and needed the additional sum.
Order affirmed as to the trial court's refusal to award plaintiff an attorney's fee, but annulled as to the increase in the amount of support money and original decree reinstated.
WOLFE, C.J., dissented.
1. DIVORCE. A divorce decree may not be modified, unless it is alleged and proved and trial court finds that circumstances on which it was based have substantially changed. 2. DIVORCE. Evidence that divorced husband was employed on same job with same company at same rate of pay as at time of divorce granted wife, that his average monthly take home pay for 15 months since divorce was $309.28, as compared with $329.05 per month for twelve months before divorce, and that divorced spouses' four children, ranging in age from two to twelve years at time of divorce, were 18 months older when wife brought proceeding to modify decree by increasing amount awarded thereby for children's support, showed no such substantial change in circumstances as to warrant modification of decree by increasing such award from $100 to $140 per month, though divorced wife could not fully support children on $100 monthly and needed such additional sum. 3. DIVORCE. Where evidence showed that divorced wife was employed since decree granting her divorce and was making $170 per month at time of hearing on her petition to modify decree by increasing amount awarded for divorced spouses' minor children's support and that divorced husband made all payments under decree, but that no request was made or negotiation undertaken with him for adjustment in decree before initiation of modification proceeding, trial court properly refused to award petitioner an attorney's fee.
Chaffee v. Chafee, 63 Utah 261, 225 P. 76; Osmus v. Osmus, 114 Utah 216, 198 P.2d 233.
See 27 C.J.S., Divorce, sec. 322. Counsel fees for application to crease alimony. 17 Am. Jur., Divorce and Separation, sec. 576; 15 A.L.R.2d 1280.
Shirley P. Jones, Jr., Salt Lake City, for appellant.
McCullough, Boyce McCullough, Salt Lake City, for respondent.
The legal principle controlling in this case is that a divorce decree may not be modified unless it is alleged, proved and the trial court finds that the circumstances upon 1 which it was based have undergone a substantial change.
Chaffee v. Chafee, 63 Utah 261, 225 P. 76; Osmus v. Osmus, 114 Utah 216, 198 P.2d 233.
The plaintiff was awarded a decree of divorce May 29, 1951. A property settlement was approved which gave her the family home (being purchased under contract), certain personal property and the custody of four minor children for whose support the defendant was required to pay $25 per month each, totaling $100.
Eighteen months later, plaintiff filed the instant proceeding, seeking to modify the decree by increasing the support money for the children, alleging that the "needs of the children have increased" and that "the defendant has bettered his financial condition" but fails to state any further particular with regard thereto. After hearing, the trial court made similar findings in the language above quoted and ordered the support money increased to $35 per child, totaling $140, from which order defendant appeals.
Review of the evidence taken at the hearing shows that although the defendant was ill at the time of the divorce, had been hospitalized and was temporarily off his job, the award was based on his then earning capacity on that 2, 3 job. The plaintiff so testified and the decree reads:
"At such time as the defendant resumes employment * * * he shall pay plaintiff $25.00 per month for each child * * *."
The record shows with certainty not to permit of misunderstanding that the defendant is now employed on the same job, with the same company, bus driver with Pacific Greyhound Lines, as he was at the time of the divorce; and further that his rate of pay, 7 1/4¢ per mile, and other conditions of his employment are the same, so that there has been no substantial change in his income. For the twelve months period prior to the divorce, his average monthly take-home pay after expenses and deductions was $329.05 as compared with an average for 15 months since the divorce of $309.28; as indicated, this shows no increase but actually a decrease. But even if this variation were that much the other way, it would hardly justify any modification of the decree.
It is true that children's needs increase as they get older. These children ranged in age from 2 to 12. But except for the fact that they had become 18 months older in the meantime there is no evidence showing any added needs. This short advance in age is not alone any such substantial change in circumstances as would warrant modification of the decree.
There is no question but what plaintiff cannot fully support the children on $100 a month, and that she needs the $140. That, however, is only one of a number of important factors to be considered in making an award for their support. When one blanket is cut to fit two beds it seldom will cover them both. The best that the court can do usually is to make such division of the income as seems most reasonable, fair and equitable to all concerned under the circumstances. This is often done indulging the hope that the slack may be made up some other way. That is what appears to have been done in the instant case. The evidence shows that the plaintiff herself has been employed since the decree, and that at the time of the hearing she was making $170 per month. It further shows that the defendant had made all his payments under the decree, yet no request was made or negotiations undertaken with him for the purpose of obtaining an adjustment in the decree prior to the initiation of this proceeding. Based on these latter considerations, the trial court refused to award the plaintiff an attorney's fee. In this regard the order is affirmed, but as to the order increasing the support money from $25 per child to $35 per child, the order is annulled and the decree as originally entered is reinstated.
Costs to appellant.
McDONOUGH, HENRIOD and WADE, JJ., concur.
I dissent. In view of all the evidence, the ages of the four children, and the fact that two years has now expired since the original decree was entered, I think that there was shown a change of circumstances to require, in fairness and equity, a change in the terms of the decree. Particularly do I think this true because the original decree made an inequitable allotment of support money — less than one-third of the defendant's take-home pay, $100, to suport four children, two of whom are 2 years old, and the other two are 7 and 12 years old.