Auer v. Auer

• Citation: 193 S.W. 926
• Decision Date: 03 April 1917
• Docket Number: No. 14779.,No. 14454.,14454.,14779.
• Parties: AUER v. AUER (two cases).
• Court: Court of Appeal of Missouri (US)

193 S.W. 926

AUER v. AUER (two cases).

No. 14454.

No. 14779.

St. Louis Court of Appeals. Missouri.

April 3, 1917.

Appeal from St. Louis Circuit Court; Eugene McQuillin, Judge.

"Not to be officially published."

Action by Lulu Auer against Reno A. Auer. Plaintiff, who was granted a divorce, moved for a modification of the decree so as to provide for an allowance of a minor child of the marriage, and also for temporary allowances for suit money and for support, and from a judgment denying the motions, plaintiff appeals. Affirmed as to a motion for suit money and temporary allowances, and reversed and remanded as to the motion to modify the decree so as to provide for support for the minor child.

John Cashman, of St. Louis, for appellant. E. E. Schnepp, of St. Louis, for respondent.

BECKER, J.

Case No. 14454, on application of counsel for appellant, was advanced by the order of this court with permission to abstract and brief it in connection with case No. 14779, each of these cases being a motion filed by appellant, plaintiff below, in an original divorce suit, but each case coming here on a separate appeal.

We shall dispose of both of these cases in one opinion, and to that end will embody all things necessary for an understanding of the points involved in one statement of facts.

Case No. 14454 is an appeal from an adverse ruling by the circuit court, against plaintiff below, on her motion for temporary allowances for the support of their minor child, and for suit money; while case No. 14779 is an appeal from an adverse ruling of the circuit court on plaintiff's motion for a modification of said decree of divorce so as to provide an allowance for maintenance of their minor child.

Plaintiff had obtained a final decree of divorce from defendant on December 30, 1908, and had been awarded the custody of the minor child, Ralph Anthony Auer, then eight years old, together with $450 alimony in gross and $50 as attorney's fees and suit money. This money was duly paid, and satisfaction thereof acknowledged on January 5, 1909, in court in due form. On May 13, 1913, plaintiff filed her motion to alter the original divorce decree and award plaintiff, as against defendant, from that time on, $200 per month for the maintenance of their said minor child and to enter a decree in her favor for the sum of $3,860 for past expenditures made by her in the support and maintenance of their said minor son. This motion having been overruled, plaintiff appeals. This case is numbered 14779.

Thereafter on the 3d day of June, 1913, plaintiff below filed another motion in the original divorce proceeding, which is designated as a motion for temporary allowance for support of the minor child and for suit money, and in this motion plaintiff asked for an allowance of $1,000 as suit money for her attorney, and an allowance of a monthly sum for the maintenance of the minor child during the period of time that her application for the recovery of expenditures theretofore paid, and of her motion for the maintenance of their minor child, might be pending. This motion was overruled by the court after a hearing, and plaintiff appeals, which appeal is here numbered 14454.

The record shows that plaintiff married defendant in the city of St. Louis, Mo., on the 1st day of July, 1897, and that they continued to live together as husband and wife from and after said date until the 1st day of July, 1902; that one child was born of the marriage, Ralph Anthony Auer; that after a number of years, during which they had lived separate and apart, plaintiff, in the month of September, 1907, filed a suit for maintenance against the defendant. This suit was dismissed in November of the same year, without having been tried. She again filed a suit for maintenance in June, 1908, which she later on dismissed. In the month of October, 1908, plaintiff filed a suit for divorce, and after a hearing of the case the court, on the 30th day of December, 1908, granted a divorce to plaintiff, together with the custody of their minor child, then eight years old, and entered an order for $500 alimony in gross, no mention being made in the decree as to any sum being allowed for the maintenance or support of the minor child. In April, 1910, plaintiff filed a suit for maintenance for their said minor child, which suit was dismissed on December 13, 1910, by plaintiff at her costs upon a stipulation entered into between herself and defendant therein. This stipulation, among other things, recites that in consideration of the payment by defendant of $200 in cash to the plaintiff, and the further payment by him of $10 per month thereafter on the 15th day of each month up to the time when the final settlement of the estate of Elizabeth A. Auer, deceased (defendant's mother), shall be made, the said plaintiff herein, Lulu Auer, released the said defendant, Reno A. Auer, from every claim against him for the past or future support and maintenance of their said son up to the time of the said final settlement of the estate of said Elizabeth A. Auer, deceased, and plaintiff therein further agreed not to institute any other proceeding of any kind until such final settlement. And further in said stipulation the defendant agrees—

"to pay same promptly on or before the times designated, or within two days thereafter, and further agrees that in case of the default in the payment of said monthly sum at any time, then this agreement shall, at the election of said plaintiff, he null and void and she shall be authorized to proceed in such manner as she may see fit, the same as if this agreement had never been made."

Payment was duly made under this agreement by the defendant, as required, and accepted by the plaintiff until the month of August, 1911, in which month the defendant did not tender payment until the 19th day thereof, which payment, so tendered, the plaintiff refused to accept, and notified defendant that she considered that he had not lived up to the agreement. Therefater the plaintiff refused to receive any further payments and repudiated said agreement. Later on, in the month of November, 1911, plaintiff, in the original divorce suit, filed a motion for a review and to modify and alter the decree of divorce theretofore entered, seeking therein to obtain alimony and maintenance for their minor child, which motion was similar in character to the motions in the instant cases. That motion was finally disposed of adversely by the court on December 6, 1912, and a motion by plaintiff to set aside this ruling was overruled in the same month.

The motions we have before us on appeal set up that no provision has been made in the original decree of divorce for the support and maintenance of the minor child, and that the plaintiff is in poor health and wholly without property or means with which to prosecute her motion for an allowance for the child; that the child has no estate or property of his own, and is wholly dependent upon plaintiff for his support and maintenance, and that the defendant is reasonably worth over $100,000 in personal and real property, and refuses to contribute anything toward the support of the child. The motions also contain allegations that at the time she obtained the divorce from the defendant, the defendant practiced a fraud upon her, in that he stated to plaintiff that he had no property of his own, and that he had been disinherited by his father and mother, Andrew and Elizabeth Auer, who were the owners of considerable real and personal property, that the defendant full well knew these statements were untrue, and that defendant knew his parents were old and decrepit, and that they would live but a short time; that in point of fact neither of the parents survived but a year or two after the granting of plaintiff's divorce. Further allegations appear, to the effect that the acceptance of the provision for alimony in gross of $500, at the time of the granting of the divorce, was obtained by duress, in that plaintiff was sick in mind and body and under a severe mental strain, and without any means whatsoever of supporting herself and their minor child.

Plaintiff further avers in her present motions that she has paid out for the care and maintenance, and for medical attention of the child, an average of $30 per month since August 8, 1900, totaling the sum of $4,160, and that during all of that time defendant has paid her sums not aggregating over $300, and that defendant is now lawfully indebted to her for the sums so expended by her, less the amount paid by defendant, namely, $300, making a balance of $3,860. Plaintiff avers that defendant now has full control and right to dispose of the property which he had inherited from his parents; that he is wasting and squandering the same in ill-advised dealings and in extravagant living, and alleges that unless the court requires the defendant to settle a part of his estate upon said minor child, or requires said defendant to give security for the future maintenance of said child, said child will be left destitute. Plaintiff in her prayer moves the court to modify the decree of divorce as formerly rendered and entered in the cause, so that the judgment and decree will conform to the true circumstances of plaintiff and defendant, and that plaintiff have and recover from defendant the amount she has expended in the keeping, care, maintenance, and education of their infant child, to wit, $3,860, and that the court order defendant to pay to plaintiff $200 a month in advance, to be used by plaintiff in the proper keeping and maintenance and education of their minor child until he becomes of age, and asks such other and further relief as to the court may seem meet and just.

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