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Cummings v. Lockwood

Supreme Court of Arizona

July 9, 1958

Clarence Charles CUMMINGS, Petitioner,
v.
Hon. Lorna E. LOCKWOOD, Judge of the Superior, Court of the State of Arizona, In and for the County of Maricopa, Respondent.

Page 1013

[84 Ariz. 336] Marshall W. Haislip, Phoenix, for petitioner.

Charles Christakis, Phoenix, for respondent.

JOHNSON, Justice.

The sole question presented is whether the amount of an allowance of alimony, in the final judgment, payable in installments of $75 per month 'for a period of six (6) months only' is subject to subsequent modification under A.R.S. § 25-321. That section provides:

'The court may from time to time after entry of final judgment, on petition of either party, amend, revise and alter the portions of the decree which relate to payment of money for the support and maintenance of the wife * * * as may be just * * *.'

The wife was granted a divorce from the petitioner herein on the 9th day of September, 1957, with a provision in the decree that

'3. That the defendant (petitioner herein) pay to plaintiff the sum of [84 Ariz. 337]

Page 1014

seventy-five and no/100 ($75.00) dollars per month, beginning with the 15th day of September, 1957, for a period of six (6) months only as and for alimony paynents.'

The petitioner paid each of said payments as they became due, and on the 13th day of February, 1958, two days before the last payment was due, the wife filed a petition to modify the decree, to require the petitioner herein to pay her $150 per month, on the ground that she had been seriously injured which required an operation on her foot. The petitioner responded that prior to the divorce the parties entered into an agreement to settle their property rights and as a result each received the sum of $2,300 from the sale of their home, and that certain personal property was given to the wife on condition she pay the balance due thereon, which she failed to do, and that petitioner has been compelled to pay same and that he is now heavily indebted.

The trial court entered an order of modification requiring the petitioner to pay his former wife the sum of $100 per month for her support and maintenance until further order of court.

We issued an alternative writ of prohibition restraining the respondent court and the judge thereof from further proceedings, and to show cause why such court and the judge thereof should not be absolutely restrained and prohibited in the matter of awarding any further sum from petitioner for the support and maintenance of his former wife.

The statute authorizing the payment of funds for the support and maintenance of the wife is A.R.S. § 25-319:

'In the final judgment of divorce the court may, in addition to division of the common property of the parties or in lieu thereof, direct the husband to pay to the wife such amounts as are necessary for support and maintenance of the wife and minor children of the parties whose custody is awarded to the wife, as may be necessary or proper. The court may adjudge that the amount be paid in one sum or in installments. * * *' (Emphasis supplied.)

It is established in this jurisdiction that the awarding of support and maintenance for the wife is addressed to the sound discretion of the trial court, and this court will not interfere with such discretion unless it is clear that some injustice has been done. Schuster v. Schuster, 42 Ariz. 190, 23 P.2d 559; Franklin v. Franklin, 75 Ariz. 151, 253 P.2d 337.

We are of the opiniin thathate decree of divorce entered September 9, 1957, by the Honorable Renz L. Jennings, who was the presiding judge at the time of the hearing on the complaint for divorce, ordering the petitioner herein to pay his wife 'the sum of $75.00 per month for six [84 Ariz. 338] months only' as alimony, was in effect the award of a gross or lump sum to be paid in ...


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