Allen v. Allen, 43874

Decision Date12 July 1954
Docket NumberNo. 43874,No. 2,43874,2
Citation364 Mo. 955,270 S.W.2d 33
CourtMissouri Supreme Court

Louis W. Krings, Kansas City, for appellant.

Don C. Carter, Sturgeon, for respondent.

BARRETT, Commissioner.

Formerly, the plaintiff, Nevada Allen, and the defendant, Moses B. Allen, were husband and wife. They were divorced in 1942, and the former wife instituted this action, in 1952, against her former husband to recover the sum of $9,225, which the plaintiff alleges she had personally advanced, at the rate of $75 a month, for the care and support of their minor daughter, Julia Ann Allen, now a high school student sixteen years of age. In her petition she alleged that it was the legal duty of her former husband to support their daughter and though he had frequently been requested to do so had refused to fulfill his obligation in this respect, except that throughout the years he had advanced the sum of $675 for which she gave him credit and asked for a judgment of $8,550. In answer to her petition the former husband denied that the $675 was an advance for the support of the child and affirmatively stated that the sums were in fact voluntary gifts to the child. He pleaded that any claim for support and maintenance of the child prior to June 30, 1947 was barred by the five-year statute of limitations, V.A.M.S. Sec. 516.120. He pleaded defensively to the entire claim that 'at the time the divorce was granted the plaintiff, on March 6, 1942, * * * it was mutually and orally agreed between plaintiff and defendant in that action, that if this defendant would not contest the care and custody of their then infant child, Julia Ann Allen, but would permit the Court to award the care and custody of said child to this plaintiff, that in consideration therefor, the plaintiff, mother of said child, would care for and maintain said child and would not ask the Court for any support or maintenance for said child. That in compliance with said agreement, the Court did award the care and custody of said child, to the plaintiff, in such divorce action, and did not award plaintiff any support or maintenance for said child. They by reason of said agreement had between plaintiff and defendant, as aforesaid, and the action of the Court taken on such agreement, the defendant is not indebted to the plaintiff in any sum whatsoever for the support and maintenance of said child, Julia Ann Allen.'

Upon the trial of the cause, without a jury, the circuit court found the issues for the defendant and entered a general judgment against the plaintiff. Since this was a court tried case, it is the duty of this court, upon the plaintiff-wife's appeal, to review the cause anew upon its merits, 'as in suits of an equitable nature', and to particularly consider the sufficiency of the evidence to support the judgment in any respect, and, finally, to enter such judgment as the trial court ought to have given 'as to the appellate court shall seem agreeable to law.' V.A.M.S., Secs. 510.310, 512.160; Supreme Court Rules 3.23, 3.27, 42 V.A.M.S.

The factual background of this litigation is that the plaintiff and the defendant, residents of Columbia, were married in 1933. Julia Ann was born in 1936, and the parties separated in June 1940. In 1942 the wife instituted an action for divorce, the husband entered his appearance, paid the attorney's fee, and the wife was granted a divorce and the custody of Julia Ann. The divorce decree, however, made no provision for the maintenance of the child, and there was no referance in the decree to a property settlement or to any agreement respecting the custody and maintenance of the child. In 1942, on the same day, the plaintiff and the defendant married again, the plaintiff's husband has since died and she, apparently, has resumed the name of Allen. Since 1942 the plaintiff had been employed as a cashier in a Milgrim store in Kansas City and has provided a home and support for the child, Julia Ann. After the institution of this suit Mrs. Allen also sought to modify the divorce decree as to future support for the child and the parties have made some disposition of that action, and the husband is now paying $50 a month for the maintenance of the daughter.

In these circumstances, the wife obtaining a divorce and custody of the child, the decree making no provision for the maintenance of the child, the former husband does not question the general rule that, independently of the maintenance provided in the divorce statutes, V.A.M.S. Sec. 452.070, he owes the duty and obligation imposed by the common law to support his child. And that under the rule his former wife may maintain an independent action against him and recover a reasonable sum for her expenditures for necessary support furnished the child. Kelly v. Kelly, 329 Mo. 992, 47 S.W.2d 762, 81 A.L.R. 875; Marley v. Marley, 356 Mo. 870, 204 S.W.2d 261; Broemmer v. Broemmer, Mo.App., 219 S.W.2d 300; annotations 15 A.L.R. 569, 81 A.L.R. 887. It is his contention, since the former wife's claim is for past support, that she is bound by the agreement she made with him prior to the divorce 'that she would not ask for any support and maintenance for said child, if respondent would allow the court to award to her the sole and exclusive care and custody of the child, and also in consideration of a settlement of property rights.' He concedes that they could not have made a binding agreement as to future support of the child, Kershner v. Kershner, 202 Mo.App. 238, 216 S.W. 547; Messmer v. Messmer, Mo.App., 222 S.W.2d 521, but he contends, as pleaded in his answer, that as to past support they could and did make a valid and binding agreement, and property settlement, which permitted the court to award the wife 'sole and exclusive custody of said child to appellant, that in consideration therefor, appellant would not ask for any support or maintenance for the child.'

In the first place, we lay aside the doubtful validity of the essence of the contract as pleaded and testified to by the husband; that is, in so far as its purpose was to irrevocably contract away the child's custody, or to permanently relieve the father of his legal obligation to support the child. In this connection see and compare: Jones v. Jones, 325 Mo. 1037, 30 S.W.2d 49; Meredith v. Krauthoff, 191 Mo.App. 149, 177 S.W. 1112; Marks v. Wooster, Mo.App., 199 S.W. 446; Hayes v. Hayes, Mo.App., 75 S.W.2d 614. It is assumed, for the purposes of this opinion, that they could make a contract, valid as between themselves, concerning the child's maintenance, Maxwell v. Boyd, 123 Mo.App. 334, 100 S.W. 540; Semon v. Ilgenfritz, Mo.App., 26 S.W.2d 836, and bargain as to her custody 'if the performance of the bargain is for the welfare of the child.' Restatement, Contracts, Sec. 583; 17 Am.Jur., Sec. 728, p. 546; 27 C.J.S., Divorce, Sec. 311, p. 1177. It must be noted, however, that in the Marks, Maxwell and Semon cases the consideration for each of the agreements was the husband's support of his child. For past support, or, more accurately, in discharge of the wife's independent, personal claim against her husband for furnishing necessary support and maintenance to a minor child, the husband and wife may validly settle the husband's obligation. Kelly v. Kelly, 329 Mo. loc. cit. 1004, 47 S.W.2d loc. cit. 768; La Rue v. Kempf, 186 Mo.App. 57, 171 S.W. 588; Goth v. Goth, 237 Mo.App. 360, 167 S.W.2d 384; Cervantes v. Cervantes, 239 Mo.App. 932, 203 S.W.2d 143. And the decisive question upon this record is whether they did, as a matter of fact, validly settle that obligation.

Mrs. Allen denied that they had any such contract or agreement. The lawyer who represented Mrs. Allen had no independent recollection of the case, or of a property settlement, and he had no record indicating that there had been a property settlement or agreement between the parties relating to any subject. The notes in his file set forth the grounds for the divorce, the dates of the marriage and separation, the facts concerning Julia Ann, and that there was to be no maintenance, no alimony and no attorney's fees and, inferentially, that care and custody of Julia Ann was to be awarded the wife. When Mrs. Allen's petition for a divorce was heard, she testified, among other things, to the following: 'Q. You are asking the court for the care and custody of this minor child? A. Yes, sir. Q. You and your husband have made an agreement on the distribution of property and the care of this child? A. Yes, sir. Q. You are not asking the Court for any alimony, or for any order for maintenance of the child? A. No.'

In this case Mr. Allen testified that prior to the divorce he and his wife entered into an oral agreement with respect to the custody and maintenance of Julia Ann. The agreement, as testified to by him, was 'If I would give her full custody of the child she wouldn't ask for any maintenance or alimony,' and he would not request part-time custody of the child. As to a property settlement, he testified, 'Q. I will ask you if you had agreed on your property settlement? A. Yes, we had agreed on that. Q. How did you settle your property settlement, how did you all agree on that? A. Well, it was settled. She took what she wanted and left me what was left. * * * Q. And didn't you agree, in this settlement, that what she took was hers and what was left would be yours? A. That's right.'

In considering his claim of an agreement, it must be noted, in the first place, that even he does not claim to have personally made any provision for the child's maintenance. When the divorce was granted Mr. Allen was unemployed and, so far as appears, had no income, and neither he nor his wife had any property other than household goods. And, it was the household effects which he says they settled by her taking 'what she wanted and left me what was left.' But that division of property, however it was accomplished, was when they separated in June...

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