Kelly v. Kelly

• Citation: 47 S.W.2d 762,329 Mo. 992
• Decision Date: 15 March 1932
• Docket Number: 29746
• Parties: Annie Kelly, Appellant, v. E. O. Kelly
• Court: United States State Supreme Court of Missouri

47 S.W.2d 762

329 Mo. 992

Annie Kelly, Appellant, v. E. O. Kelly

No. 29746

Supreme Court of Missouri

March 15, 1932

Appeal from Lawrence Circuit Court; Hon. Charles L. Henson Judge.

Reversed and remanded.

M O. Morris and D. S. Mayhew for appellant.

Liability of father for support of children. Where decree is silent as to both custody and support, the liability of the parents remains unchanged; and where custody is awarded and nothing is said about support and maintenance, the Missouri authorities hold that the father remains liable. 19 C. J 354; Virtel v. Virtel, 212 Mo. 562, 111 S.W. 579; Kinsolving v. Kinsolving, 194 S.W. 530; Aurer v. Aurer, 193 S.W. 926. Where the husband obtains a divorce for the wife's fault, the rule seems to be that if, out of her own funds, wife cannot maintain the children properly, she has recourse on the father. 19 C. J. 355; White v. White, 169 Mo.App. 40, 154 S.W. 872; Marks v. Wooster, 199 S.W. 448; Robinson v. Robinson, 186 S.W. 1032, 204 Mo. 687. In Sec. 18, 19 C. J. 357, it is said "And she should not be compelled to resort to a separate action to enforce the father's common law duty to support his children" citing Griffith v. Griffith (Mo. App.), 190 S.W. 1021. If we will read the statutes on the care and custody, we will see clearly that the court has jurisdiction only while they are minors. Secs. 1806, 1812, R. S. 1919. In the case of McClosky v. McClosky, 93 Mo.App. 393, written by Judge Good, it is said the father remains to the mother responsible for necessary disbursements made by her in behalf of minor children after a decree of divorce.

Neale & Newman for respondent.

(1) The court granting divorce and awarding custody of children retains a continuing exclusive jurisdiction both as to custody and maintenance of minor children. Secs. 1806 and 1812, R. S. 1919; In re Gladys Morgan, 21 S.W. 1122; 22 S.W. 913; Meridith v. Krauthoff, 177 S.W. 1118, par. 1; Robinson v. Robinson, 186 S.W. 1032; Laumeier v. Laumeier, 271 S.W. 481; Conrad v. Conrad, 296 S.W. 197; Thornton v. Thornton, 2 S.W.2d 821. (2) Where, as in this case, father is divorced for mother's fault, mother has no rights against the father except those derived from the rights of the minor children, and unless the recovery from the father by the mother will enure to the benefit of the children, then recovery will not be permitted. 19 C. J. 355; White v. White, 154 S.W. 872; Marks v. Wooster, 199 S.W. 448; Fulton v. Fulton, 39 N.E. 731; Barnett v. Barnett, 230 S.W. 337.

OPINION

Sturgis, C.

This case comes to this court from the Springfield Court of Appeals by reason of the dissent of one of the judges of that court who deemed the majority opinion in conflict with Rankin v. Rankin, 83 Mo.App. 335, a decision by the St. Louis Court of Appeals, and also in conflict with Laumeier v. Laumeier, 308 Mo. 201, in this court which the majority opinion professed to follow but distinguished. The Court of Appeals decision is reported in 11 S.W.2d 1107.

The case was tried in the Circuit Court of Lawrence County where judgment went against plaintiff on a demurrer to the petition, and plaintiff appealed to the Springfield Court of Appeals. The plaintiff, Annie Kelly, is the divorced wife of the defendant, E. O. Kelly, and the suit is an independent action to recover the expense incurred by her in the maintenance of their minor children. The petition alleges the marriage and subsequent divorce of plaintiff and defendant, the divorce being granted to this defendant, but with an award to this plaintiff of the care and custody of their two minor children. While the decree of divorce awards the care and custody of the two minor children to the wife, no provision whatever was made for their support, the divorce judgment being silent on that subject. The petition further alleges that after the divorce the plaintiff supported these two minor children out of her own means and by her own labor until they each reached their majority. It is also alleged that in consequence of a similar suit some years ago, but after the divorce, which suit was never tried, the defendant on compromise paid plaintiff for her support of the children for a number of years but refused to pay further. This suit by the divorced wife is, therefore, to recover from the father the necessary expenditures made by the mother in supporting their minor children during a part of their minority.

The trial court sustained a demurrer to the petition as not stating a cause of action, not from the lack of any necessary averment of fact, but because the form of the action is that of an independent suit instead of being by motion in or a proceeding ancillary to the original action for divorce. The trial court ruled that under the provisions of our statutes, Sections 1806 and 1812, Revised Statutes 1919 (now Secs. 1355, 1361, R. S. 1929), a divorced wife and mother, to whom the court in granting the divorce has awarded the custody of minor children of the marriage but has made no provision for their support, cannot later maintain an independent action against the father to recover what she has expended in their support -- that her only remedy, if any, is by motion or other appropriate proceeding in or engrafted on the divorce suit in the court granting the divorce. The trial court so ruled on the authority of Laumeier v. Laumeier, 308 Mo. 201, which it construed as holding that the remedy given by such statutes "to make alterations as to allowance of alimony and maintenance" (Sec. 1355, R. S. 1929) or "to review any order or judgment touching the alimony and maintenance of the wife, and the care, custody and maintenance of the children" (Sec. 1361, R. S. 1929), is exclusive and preclusive of all other remedies touching such matters, and sustained a demurrer to plaintiff's petition because stating an independent cause of action by the divorced mother based on the common law duty of the father to support his minor children and giving third persons who perform such duty, on his neglect and refusal, a right of action against him.

This was the question presented by plaintiff's appeal to the Springfield Court of Appeals in this case and in which the members of that court agreed that the ruling of the trial court was wrong and reversed and remanded the case. The judges of that court all reached this result but by different routes and on different theories as to the law.

A reading of the majority opinion of the Court of Appeals shows that it rules that under the decision of this court in the Laumeier case, supra, plaintiff's present cause of action would not lie except for the fact that at the time it was brought the minor children for whose support plaintiff is suing had attained their majority and were no longer wards of the court granting the divorce, and hence that court's jurisdiction had terminated and it could not award the divorced wife any relief by "alteration" or "review" of the original decree of divorce, as provided by statute; and for this reason the divorced wife would be restored to her common law action, which this case is, to recover on account of the mother having performed the father's duty to support his minor children. We agree that the power of the divorce court to review or make alterations of its orders touching the maintenance of the minor children ceased with such minority, and if authority be needed for so plain a proposition, the cases of Thornton v. Thornton, 221 Mo.App. 1199, 2 S.W.2d 821, and Conrad v. Conrad, 296 S.W. 196, so hold. [See 19 C. J. 360, sec. 822.] One of the judges, Cox, J., dissented on the ground that if the law is that the statutory remedy by motion in the original case is exclusive and that the divorced wife, to whom the court commits the custody of the minor children, without provision for their support, must seek relief by appealing to the divorce court by motion to alter or review, then the failure to do so while the court is possessed of such power is her fault and misfortune, but would not afford her an entirely different remedy. As said in this dissent, the Laumeier case makes no such exception and none can be properly made. If, therefore, the major premise of the majority opinion is correct, the plaintiff cannot recover and the case should be affirmed.

The dissent, however, on which the case comes here does not agree that the decision in the Laumeier case, 308 Mo. 201, is a binding authority to the effect that a divorced wife to whom the court has awarded the custody of minor children, without any provision for their support, cannot maintain an independent action against the father for past support of such children furnished by her after the divorce, leaving to the divorce court the exclusive power and jurisdiction to provide originally or by later order for any future support of such children -- this on the theory that such independent suit for reimbursement of expenses already incurred by her does not call for or involve any alteration or review of the court's judgment touching the custody or maintenance of the minor children, under the statutes mentioned. This sequence necessarily follows, we think, from the holding of the majority opinion that such independent suit may be maintained after the power and jurisdiction of the divorce court in this respect has ceased to exist by reason of the wards of the court becoming of full age. The dissenting opinion points out that the Laumeier case, supra, itself deals with a proceeding brought in the court granting the divorce to have that court review and alter the former judgment of divorce so as to provide for the future support of a child born after the divorce was granted, and that what was said about the divorced wife not having the right to maintain an independent suit to...