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McVey v. McVey

Supreme Court of Arizona

June 1, 1943

JOHN H. McVEY, Appellant,
v.
JULIA G. McVEY, Appellee

APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Niles, Judge. Judgment affirmed.

Mr. W. L. Barnum and Mr. R. H. Brumback, for Appellant.

Miss Alice M. Birdsall, for Appellee.

OPINION

Page 972

[60 Ariz. 381] 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 G. McVey was defendant and cross-complainant. The ground charged and upon which the divorce was granted to the wife on her corss-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 further [60 Ariz. 382] 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 installments...."

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:

[60 Ariz. 383] "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 ...


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