
    FLORENCE ELLENSTEIN v. MAX ELLENSTEIN.
    
    May 2, 1941.
    No. 32,827.
    
      Covell & Root, for appellant.
    
      Louis H. Joss, for respondent.
    
      
      Reported in 297 N. W. 848.
    
   Per Curiam.

Defendant appeals from an order refusing to modify a decree of divorce in respect to alimony.

The decree was obtained by plaintiff August 25, 1939. It obligated defendant to pay her alimony at the rate of $125 per month. Defendant’s motion below, made October 24, 1940, to have payments reduced to $50 per month, was denied.

We cannot see that there was abuse of discretion in denying the motion. Defendant’s personal balance sheet remains intrinsically just about what it was when the decree was entered. He claims that the relief wanted should have been granted because of decreased earnings. He did make a showing of decreased earnings as distinguished from any substantial loss in assets. The defect in his case now is that there is in the record evidence from which it could be concluded that he has an earning capacity equal to the task of making $5,000 yearly.

We do not overlook the argument that defendant, at the time of the motion, was 62 years of age and that there is no assurance that he could procure employment or, if he could, that his annual earnings would even approach $5,000. Plaintiff herself was 68 and wholly dependent for support upon her alimony. As against his position, there is the evidence, consisting of his own admissions, that he has the substantial earning power indicated. It stands unrefuted. So it would be improper to disturb the order refusing to decrease the payments of alimony as fixed by the decree of divorce.

Order affirmed.  