Allen v. Allen
| Decision Date | 03 June 1968 |
| Docket Number | No. 24930,24930 |
| Citation | 433 S.W.2d 580 |
| Parties | Lois Jean ALLEN, Plaintiff-Respondent, v. Raymond Lee ALLEN, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
James D. McGrath, Kansas City, for appellant.
Austin E. Van Buskirk, Donald L. Dorei, Kansas City, for respondent.
This is an appeal by defendant, formerly plaintiff's husband, from an order of the trial court overruling his motion to vacate a judgment for child support previously rendered against him in a divorce suit between the parties.
Plaintiff wife brought the original action against defendant by filing her petition on June 24, 1958, alleging, among other matters: facts relating to consummation of the marriage; that plaintiff had discharged her lawful duties as a wife; that defendant had offered her indignities (enumerated) such as rendered her condition in life intolerable; and, that there was one child born of the marriage, a girl nine years of age. It was plaintiff's prayer 'that she be divorced from the bonds of matrimony contracted as aforesaid; that she be awarded custody of the minor child; and for such other and further orders as in the premises is fitting and proper.' Defendant was personally served with summons and a copy of the petition, but he filed no answer and made no appearance. At the trial held on August 1, 1958, plaintiff produced evidence to sustain the allegations of her petition, including testimony that plaintiff, defendant and the minor child were residents of Missouri, that the child was in plaintiff's custody, that defendant was employed and that he earned between $65.00 and $70.00 a week. When asked to state how much money she thought was necessary to support the child she said, 'I prefer to do it myself.' Upon being informed that child support would be ordered she testified that $15.00 a week would be sufficient. The court's judgment awarded plaintiff a divorce and custody of the minor child and ordered defendant to pay her child support in the sum of $15.00 per week. (This child, Susan Diane Allen, died April 20, 1967.)
On December 28, 1966, defendant filed in the original cause, his unverified motion (above referred to) entitled 'Motion to Vacate Child Support Judgment' in which he contended that the court was without jurisdiction to enter a child support judgment because plaintiff had not asked for it in her petition, and that the judgment in that respect was void ab initio. The motion contains other allegations which have no bearing on the legal question presented. On September 21, 1967, the trial court entered its order overruling the motion and defendant appealed. The transcript before us does not indicate that defendant offered any evidence to support the motion.
Defendant's first point presents the essential question for our decision. It is there contended that the trial court erred in refusing to vacate the child support award because '(the) court had no power to render judgment for child support in default divorce case where there was no pleading praying such award.' Defendant's second point is devoted to the argument that 'Courts have no power to render judgment until their action is called into exercise by pleadings, and any relief granted beyond that which is called for by the pleadings is void.' Defendant's third point presents a slight variation by suggesting that 'The court erred in refusing to vacate child support judgment where the court made a child support award contrary to the request of the plaintiff and the pleadings upon its own motion without notification to defendant.' Defendant's appeal theory thus presented is not supported by any semblance of authority.
The court derives its jurisdiction and authority to provide for custody and maintenance of minor children in divorce actions from, and is enjoined to perform certain duties in that respect by, Section 452.070 V.A.M.S., here quoted in pertinent part: 'When a divorce shall be adjudged, the court shall make such orders touching the alimony and maintenance of the wife, and the care, custody and maintenance of the children, or any of them, as, from the circumstances of the parties and the nature of the case, shall be reasonable.' (Emphasis supplied.) See Green v. Green, Mo.App., 234 S.W.2d 350, where the court appropriately expressed its view of the court's duty to make suitable provision for child support as required by Section 452.070, as follows: 'The primary duty to support his minor children rests upon the father no less after divorce than before the decree was granted, and to this end the statute enjoins the court adjudging a divorce to make such order touching the maintenance of the children as shall be reasonable in view of the circumstances of the parties and the nature of the case.' (Italics supplied.)
The issue now before us was settled, in principle and by analogy, by the decision of the Supreme Court in the case of In re Morgan, 117 Mo. 249, 21 S.W. 1122, 22 S.W. 913, where a husband in a divorce action challenged the jurisdiction of the trial court to determine the question of child custody when there is no prayer for custody in the pleadings. The court ruled the question as follows:
The Supreme Court's decision in the Morgan case has been followed uniformly since its rendition. In Crooks v. Crooks, Mo.App., 197 S.W.2d 678, 682, the court stated: In S_ _ v. G_ _, Mo.App., 298 S.W.2d 67, the court commented as follows: ...
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