Backy v. Backy

• Decision Date: 20 March 1962
• Docket Number: No. 30950,30950
• Citation: 355 S.W.2d 389
• Parties: Lana Kathleen BACKY, (Plaintiff) Appellant, v. Andrew J. BACKY, (Defendant) Respondent.
• Court: Missouri Court of Appeals

Page 389

355 S.W.2d 389

Lana Kathleen BACKY, (Plaintiff) Appellant, v. Andrew J. BACKY, (Defendant) Respondent.

No. 30950.

St. Louis Court of Appeals, Missouri.

March 20, 1962.

James H. Connor, Festus, William L. Mason, Jr., St. Louis, for appellant.

W. H. S. O'Brien, Festus, William S. Bahn, St. Louis, for respondent.

SAMUEL A. DEW, Special Commissioner.

On respondent's motion to quash a general execution to enforce the part of a divorce decree awarding alimony in gross, the court sustained the motion, stayed execution and modified the decree so as to provide for the payment of the unpaid allowance in monthly installments pending the appellant's occupancy of real estate jointly owned by the parties. From that order this appeal was perfected. The sole point of error relied on is that the court lacked jurisdiction and authority to modify a decree of alimony in gross so as to provide for its payment in monthly installments.

On October 23, 1959, a divorce was granted to the appellant (hereinafter referred to as the plaintiff). In the decree the court also awarded to her the custody of the nine minor children of the parties, a monthly allowance for child support, and $9500 as alimony in gross. As to the alimony, the decree read that 'the defendant pay to the plaintiff the sum of $9500 as Gross alimony in this case. Stay of Execution on the Gross Alimony, for one year upon payment to Plaintiff of the defendant's part of the equity in the Olive Street property and Defendant's part of the equity of the 2nd Street property as soon as it can be sold.' No appeal was taken from that decree.

On January 10, 1961, a general execution was issued by the plaintiff to recover the unpaid portion of the said alimony in gross, to-wit: $6,920, inclusive of interest claimed by the plaintiff. The sheriff's return shows some sort of execution of this writ by 'returning all papers and bills on this sale by orders of J. W. Thurman, Attorney.' Meanwhile, however, the respondent (hereinafter referred to as the defendant) filed a motion on February 10, 1961, to quash the above execution on the grounds that the decree as to the alimony was not yet final because certain conditions thereof had not been performed by the plaintiff, having to do with the sale of 'the 2nd Street property,' jointly owned by the parties and referred to in the decree, the sale of which had been prevented by the plaintiff. The motion also prayed for a stay of execution until the judgment be declared to have been complied with and had become final. The motion alleged certain expenses and disbursements on defendant's part for the benefit of the minor children and that he had suffered a loss in the maintenance of the joint real estate. The motion further asked the court, in the alternative, in event it be found that he had performed his part of the provisions of the decree, that the execution be quashed and stayed, and that an order be entered 'requiring the balance of gross alimony herein to be paid by defendant in equal monthly payments, without interest, in a definite amount not to exceed one hundred dollars ($100.00) per month.' On February 13, 1961, the foregoing motion to quash is shown 'sustained.'

On April 12, 1961, an order was entered described in the record as 'A Written Order Confirming Stay of Execution, entered February 13, 1961, and clarifying and modifying the original order.' The ensuing order then recited the appearance of both parties in person and by their attorneys, and the court ruled therein that the 'Defendant's Motion to Quash the Execution is hereby sustained and the payment of Gross Alimony is hereinafter clarified and modified.' The order proceeded to find the facts to be that the defendant had paid the monthly child support as decreed; had continued to pay the mortgage payments on the joint properties on 2nd Street in Festus Missouri, and in Antonia, Missouri; had voluntarily maintained an insurance program for the benefit of their minor children at a cost of $150 per month; that plaintiff had received $6,000 at the time of the divorce decree of which $3,000 was applicable to the gross alimony and $3,000 was from the sale of real estate; that plaintiff had squandered the entire $6,000 and was now $1,000 in debt; that the plaintiff, with her eight minor children, had on or about April, 1960, moved into and was still occupying the 2nd Street property where, in fact, the court said, it appeared that she could reside more comfortably and economically than elsewhere, which occupancy, the court found, was reasonably worth $100 per month as a fair rental value. The order thereupon proceeded as follows:

'NOW THEREFORE, the Court finds that it would be to the best interest of the parties hereto and the said minor children that the unpaid Gross Alimony theretofore allowed be paid to the Plaintiff at the rate of ONE HUNDRED DOLLARS ($100.00) per month and that the Defendant be given credit for FIFTY DOLLARS ($50.00) per month as his share of rent due and owing by Plaintiff, and it is ordered that Defendant pay the sum of FIFTY DOLLARS ($50.00) per month until the entire unpaid balance of Gross Alimony is satisfied for so long as Plaintiff continues to reside in said Second Street property; and it is further ordered that in the final accounting Defendant shall be given credit for rental of Second Street property by Plaintiff prior to the date of this order, and that the Defendant be given credit for one-half of the total mortgage payments, insurance, taxes, repairs and maintenance on both the Second Street and Antonia, Missouri properties, to the extent that such total exceeds the rents received from the Antonia property; the Court Further finds as a matter of fact that there remains due and unpaid on the Gross Alimony allowance the sum of SIX THOUSAND, FIVE HUNDRED DOLLARS ($6,500.00) less the sum of FIVE HUNDRED DOLLARS ($500.00) being one-half the rent on the Second Street Property from April 1960 to and including January 31, 1961 inclusive, or SIX THOUSAND DOLLARS ($6,000.00) which is subject to accounting deductions, if any, of mortgage payments, insurance, taxes, repairs and maintenance as above mentioned, possibly exceeding rental income.

'It is further ordered that Execution will issue on the unpaid balance of Gross Alimony, less credits, upon default of a monthly payment as provided herein.

'So ordered this 12th day of April, 1961.'

Plaintiff asserts that the only authority for a modification of a decree of alimony must be found in Section 452.070 RSMo 1959, V.A.M.S., and that no authority is found in that statute for the modification of an award of alimony in gross. She further claims that it is uniformly so held by the reviewing courts of this state. That statute, it will be recalled, referring to awards of child custody, child maintenance and alimony, provides that: 'The court, on the application of either party, may make such alteration, from time to time, as to the allowance of alimony and maintenance, as may be proper * * *.'

The law relative to modification of a judgment for alimony under the above statute is well stated in Landreth v. Landreth, Mo.App., 326 S.W.2d 128, 131, as follows: 'A modification of a judgment for alimony is dependent on a change in the circumstances of the parties between the time the judgment is entered and the time the motion for modification is filed (citations). * * * 'authority for modification of a judgment for alimony is dependent upon proof of a subsequent change in conditions. * *'' Defendant contends that the original decree itself prescribed certain conditions as to when and how the gross alimony could become final and collectible, namely, upon the suggested sale of joint properties from which defendant could pay his equities to apply on the alimony; that the conditions referred to in the decree were ambiguous and unenforceable; that, with the parties before it, upon the motion, the court properly recognized a mandate to clarify its decree and to do so with the facts in mind as they had since transpired and appeared; that the court did not alter the gross amount of alimony awarded, but only supplied the method of its payment; that great deference should be paid the action of the court which had all the parties before it; that this court should review the matter de novo in the light of the record and should approve the order made; that the alimony should be treated separately from the divorce; that the award remained ambiguous from the date of the decree to the date of the order appealed from resolving the ambiguity; that jurisdiction, in the absence of proof, should be presumed.

It is evident from the order in question that the court was confronted with a perplexing set of facts. It appears from the decree that the court believed that the gross alimony would and could be paid, in whole or in part, out of the defendant's equities in two tracts of real property jointly owned by the parties and which would be sold; one of these properties was the 'Olive Street' property and the other...