Perkins v. Perkins

Manning J.:

The petition is under § 8249 of the Compiled Laws, which provides that “ after a decree for alimony ’’ “ the Court may, from time to time, on the petition of either of the parties, revise and alter such decree, respecting the amount of such alimony or allowance, and the payment thereof, and also respecting the appropriation and payment of the principal and income of the property so held in *458 trust, and may make any decree respecting any of the said matters which such Court might have made in the original suit.’’ The section must be coustrued to mean one of two things. It may be construed as empowering the Court to change the decree for alimony, from time to time, on facts existing when the decree is granted, or on new facts thereafter transpiring; or as only authorizing a change on the latter, when they are of such a character as to make it necessary to suit the new state of facts. The last we think is the true construction. We can not suppose the first to have been in the mind of the Legislature, as it would virtually take away the right of appeal, which the law gives to the party who may feel himself, aggrieved by the decision of an inferior tribunal, and subject the rights of the parties to the discretion of the Court making the decree, however arbitrarily or capriciously exercised. But as various circumstances might occur after alimony granted — as adultery on the part of the woman, or the loss of property by some inevitable accident on the part of the man, and the like — we are led to believe that the statute was intended to provide for such new circumstances, and that that was all the Legislature had in view in enacting it: that it was not designed to affect the right of appeal, or to give to the Court granting alimony power to review and to reverse or modify its own decree. Such a power would be unprecedented, and out of the ordinary course of judicial proceedings.

The only ground stated in the petition for changing the decree, is, that defendant did not know, at the tim'o it was made, that complainant would be entitled to dower in his real estate. If defendant was dissatisfied with the decree, he should have appealed; and not having done so, tho error, if there be one, can not be corrected, after the time for appealing has expired, by petition under the statute.

There is evidence taken under the petition of matters *459 transpiring after the decree, but we can not notice it, as the facts proved are not made a ground for relief in the petition, which is defective in substance.

The order opening the decree for review,- and the subsequent order denying alimony, are reversed, with costs to complainant of both courts.

Cheistiancy and Campbell JJ. concurred. Martin Ch. J. did not sit in this case.