Aronberg v. Aronberg
| Decision Date | 07 October 1958 |
| Docket Number | No. 30014,30014 |
| Citation | 316 S.W.2d 675 |
| Parties | Muriel ARONBERG (Plaintiff), Respondent, v. Lawrence M. ARONBERG (Defendant), Appellant. |
| Court | Missouri Court of Appeals |
J. L. London, Herman Willer, St. Louis, Susman, Mayer & Willer, St. Louis, of counsel, for appellant.
William W. Crowdus, St. Louis, for respondent.
This is an appeal by defendant from an order denying his 'Motion to Correct Record Nunc Pro Tunc.'
The circumstances that form the foundation of the order from which defendant appeals had their origin in 1948 when plaintiff, Muriel Aronberg, filed a petition for divorce. In this petition after alleging certain indignities said to have been committed by the defendant, Lawrence M. Aronberg, plaintiff alleged that one male child was born of the marriage. Plaintiff concluded her petition with a prayer for a decree of divorce, custody of the minor child and a reasonable sum for the support of said minor child. The prayer of plaintiff's petition contained the further request 'that the Court adjudge to her alimony for her support and maintenance * * *.'
A decree of divorce was granted plaintiff on May 5, 1948. Priro thereto plaintiff and defendant entered into an agreement entitled 'Stipulation.' This stipulation was filed in the divorce proceedings on the day the decree of divorce was granted. In this stipulation it was 'stipulated and agreed' by and between plaintiff and defendant 'that in the event the Court shall grant to plaintiff a decree of divorce upon her petition' that plaintiff 'shall have the custody and control of the minor child' with visitation privileges to defendant at all reasonable times, subject to certain conditions enumerated in the stipulation.
It was further provided in said stipulation that 'Defendant shall pay to plaintiff the amount of Seventy-five ($75.00) Dollars per month for the support and maintenance of said minor child' and that 'Defendant shall pay to plaintiff the amount of One Hundred and Twenty-five ($125.00) Dollars per month as and for her alimony.'
It was further provided that defendant 'keep in force' a described policy of life insurance on his life in which the minor child was the beneficiary. Another provision in said stipulation provided as follows: 'Each of the parties hereby releases the other party hereto of all rights and claims in and to the property, estate or interests of the other party hereto which each may now have, possess, or hereafter acquire, against the other party and each of the parties hereto waives any claim of any kind whatsoever to any property or estate of the other party hereto whether now in possession or hereafter acquired.'
The stipulation concluded with the following provision: 'Both parties agree that this agreement shall be subject to the approval of the St. Louis Circuit Court and that the care and custody and maintenance of the minor child aforesaid shall at all times be open to the determination of the Judges of said Court with respect to the best interest of said child; both parties agree that said Court shall retain jurisdiction of both plaintiff and defendant in this cause to render any judgment that said Court may deem proper affecting the interest of the minor child aforesaid.' (Emphasis supplied.)
On the day of the hearing on the petition for divorce plaintiff appeared in person any by attorney and the defendant did not appear but was represented by an attorney and on this same day the trial judge made the following entry in the 'Judge's Trial Docket Book':
'Decree for pltf custody of child $75.00 per mo for support of child $125.00 per mo alimony Visitation as per stip filed.'
At the conclusion of the hearing the attorneys for the plaintiff and defendant prepared and signed a 'Memorandum for Clerk,' which was filed with the Clerk of the Court and appears in the files of the case. The Memorandum reads as follows:
Lawrence M. Aronberg
No. 17970 Room 16 May 5, 1948.
'Cause heard; decree of divorce for plaintiff; custody of child Jerome Milton Aronberg awarded to plaintiff with right of visitation to defendant as per stipulation filed; $75 per month for support of said child; $125 per month alimony as per stipulation filed; stipulation presented to court and approved.
'Melvin L. Hertzman and Sam Levin Attorneys for plaintiff
'Susman, Mayer & Willer
Attorneys for defendant.'
This Memorandum has on it the filing stamp of the Clerk of the Court showing it was filed with the Clerk on May 5, 1948.
The decree which was entered in the permanent judgment record of the trial court, after reciting the appearances and after granting a decree of divorce to plaintiff with custody of the minor child, reads as follows:
'It is further ordered, adjudged and decreed by the Court that the defendant shall have the privilege of visiting with said minor child at all reasonable times, taking into consideration the professional hours of defendant, and that the defendant shall have the temporary custody of said minor child from June 15th to September 1st, of each year, until the further order of the Court.
'It is further ordered, adjudged and decreed by the Court that the plaintiff have and recover of the defendant, as and for the support and maintenance of said minor child, the sum of $75.00 per month, until the further order of the Court, payable on the 5th day of each month, the first payment to be made and to become due and payable forthwith.
'It is further ordered, adjudged and decreed by the Court that the plaintiff also have and recover of the defendant, as and for alimony, the sum of $125.00 per month, until the further order of the Court, payable on the 5th day of each month, the first payment to be made and to become due and payable forthwith.
'It is further ordered by the Court that the costs of this proceeding be paid by the defendant, and in default of the payment of said costs or any of the installments awarded as aforesaid, as and for alimony and as and for the support and maintenance of said minor child, as and when the same become due and payable, execution issue therefor.
'Stipulation filed.'
On May 6, 1957, nine years after the decree of divorce was granted, plaintiff filed a motion 'for Modification of Judgment for Alimony and Support Money.' In this motion she alleged, inter alia, that defendant is a practicing physician and surgeon and at the time of the granting of the judgment and decree of divorce he had an annual gross income of $15,000, more or less, and that defendant's annual gross income is now approximately $60,000.
Plaintiff further alleged in said motion that the amount of monthly alimony and child support awarded by the court in its decree of May 5, 1948, is not sufficient to maintain plaintiff and said minor child according to their former station in life. She concluded her motion with a prayer for an order increasing the monthly allowance to plaintiff of alimony and support of the minor child.
After the filing of plaintiff's motion to modify defendant filed his 'Motion to Correct Record Nunc Pro Tunc.' In this motion defendant asks the court to correct the record to conform to the facts and 'to conform to the written settlement Agreement entered into by and between' plaintiff and defendant and 'duly filed in this court on May 5, 1948, the date upon which the court granted a decree of divorce to the plaintiff, Muriel Aronberg, after having approved the said contract of settlement which was duly filed for record, and a Minute made thereof.'
Defendant further alleged that the error was committed by the Clerk of the Court in failing to note or observe in the original decree that the parties had effected a full, complete and final settlement as set out in said 'contract or stipulation, the terms of which contract were duly filed in this case and are a part of the record * * * in which stipulation the parties thereby fully released each other,' of all rights and claims in and to the property, estate or interests of the other party and that each of the parties waived any claim of any kind whatsoever to any property or estate of the other party.
It is further alleged by said defendant that there was a full and final settlement agreed upon by and between the parties and that the parties agreed that the agreement was to be subject to the approval of the Court. Defendant further alleges that the decree of the Court fails to correctly reflect the terms, conditions and provisions of the Contract of Settlement and that the Court has no jurisdiction to change any alimony provision or to retain jurisdiction with reference to any alimony.
The motion concludes with a prayer asking that the decree be corrected and modified nunc pro tunc to conform to the facts in the case and to the Contract of Settlement which defendant claims was duly approved by the trial court on the 5th day of May, 1948, and made a part of the record. The specific corrections prayed for are as follows:
'* * * that the Decree be corrected by deleting the words 'until the further order of the Court' in lines 9 and 10 of the decree and to delete therefrom the words 'in default of the payment of said costs or any of the installments awarded as aforesaid, as and for alimony' in lines 13 and 14 and 15 of said decree, and that the decree further be corrected to show that the Court approved the Contract or Stipulation of Settlement.'
Subsequent to the filing by the defendant of his 'Motion to Correct Record Nunc Pro Tunc' he filed another motion styled 'Motion to Quash' in which he asked the Court to quash the motion of plaintiff for modification of the judgment for alimony and support money contending that the Court had no jurisdiction to proceed with said motion.
One hearing was held by the trial court on the two motions filed by defendant. As a result...
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