REDUCTION OF ALIMONY ALLOWANCE.

Court of Appeals for Hamilton County.

#### Dora Bruner v. John E. Bruner et al.

Decided, April 29, 1918.

*Alimony*— Form *of Application for Change in Allowance Immaterial, When*— Presumption *as to Action of the Court Below*— Changed *Conditions.*

1. It is immaterial that the application for reduction of an allowance of alimony is made in the form of a motion rather than a petition, where the motion has been regularly filed and sets forth the grounds upon which a modification of the original order is asked.

2. At the hearing of such an application a presumption arises, in the absence of a bill of exceptions containing all of the evidence, that the court had before it evidence as to property out of which an allowance could be made and that the allowance was made in accordance with law.

*753. Changed.conditions which justfy a reduction of the original allowance may not justify a discontinuance of the allowance altogether.

*Frank E. Eunkel,*for plaintiff in error.

*Alfred G. Allen*and *Lorbach $ Garver,*contra.

By the Court.

Error to the Court of Insolvency of Hamilton County.

On February 19, 1910, a divorce was granted plaintiff in error, and a decree for alimony of sixty dollars per month payable monthly was allowed, which alimony was regularly paid.

On June 11, 1917, a motion was filed by defendant asking for a modification of the decree for alimony, setting forth changed conditions claimed to justify same together with an affidavit in support of said motion. On October 6, 1917, .after the hearing of same said motion was sustained and a decree was entered terminating the payment of alimony. The petition in error here seeks to obtain a reversal of the order terminating the alimony.

It is urged by plaintiff in error that the question of modification could not be raised 'by motion but should be by petition only. "We are of the opinion that the motion, having been regularly filed, setting forth the ground upon which the modification is asked and setting forth the changed conditions, is sufficient to give the court jurisdiction to hear and determine the question. The mere naming of the paper writing a "motion” instead of a "petition” could not deprive the court of such jurisdiction.

The question as to the amount of property owned by the defendant at the time of the granting of the divorce is not properly raised here. In the absence of a bill of exceptions containing the evidence introduced at the original hearing of the divorce case, this court will presume that the trial court had before it evidence of property out of which said court could order the allowance made at that time, and it will be presumed that it made the award in accordance with the law. *Lape*v. *Lape,*28 O. C. A., 108.

The right to modify the decree for alimony would therefore rest upon the ground of changed conditions. We hold that the evidence shows such changed conditions as to justify the *76lower court in sustaining the motion to modify the decree, but it does not justify the termination of the decree for alimony as a whole. The court would have been justified in reducing the alimony, under the changed conditions, to the payment of the amount of thirty dollars per month.

The judgment of the insolvency court will be modified and the payments of alimony continued from and after October 6, 1917, in the sum of thirty dollars per month, payable monthly.

Jones, P. J., and Hamilton, J., concur.