Bowzer v. Bowzer

• Decision Date: 03 November 1941
• Docket Number: No. 19927.,19927.
• Citation: 155 S.W.2d 530
• Parties: JAMES F. BOWZER, RESPONDENT, v. CORA BOWZER, APPELLANT.
• Court: Missouri Court of Appeals

155 S.W.2d 530

JAMES F. BOWZER, RESPONDENT, v. CORA BOWZER, APPELLANT.

No. 19927.

Kansas City Court of Appeals, Missouri.

November 3, 1941.

Appeal from Circuit Court of Macon County. — Hon. Harry J. Libby, Judge.

AFFIRMED (in part), REVERSED AND REMANDED (in part).

Jos. J. Shy for appellant.

(1) In divorce cases, the appellate court is not bound by the trial court's findings, but will hear the case de novo. Capps v. Capps, 65 S.W. (2d) 661; Lampe v. Lampe, 28 S.W. (2d) 414; Krebbs v. Krebbs, 24 S.W. (2d) 171; Tebbe v. Tebbe, 223 Mo. App. 1106, 21 S.W. (2d) 915; Ryan v. Ryan, 300 S.W. 1046; Elsworthy v. Elsworthy, 11 S.W. (2d) 1078; Teel v. Teel, 221 Mo. App. 104; Dennis v. Dennis, 289 S.W. 16; Klenk v. Klenk, 282 S.W. 153; Libbe v. Libbe, 157 Mo. App. 701; Kistner v. Kistner, 89 S.W. (2d) 106. (2) When the wife secures a divorce, she is entitled to a judgment for alimony regardless of the value of her individual property. Sec. 1355, R.S. Mo. 1929; Penningroth v. Penningroth, 71 Mo. App. 438, 440; Stark v. Stark, 115 Mo. App. 436. (3). The allowance of alimony is a matter of sound judicial discretion to be exercised with reference to the circumstances of each particular case. Schmidt v. Schmidt, 26 Mo. App. 235; McCartin v. McCartin, 37 Mo. App. 471; Blair v. Blair, 131 Mo. App. 571; Viertel v. Viertel, 212 Mo. 562; Schwer v. Schwer, 50 S.W. (2d) 684; Gercke v. Gercke, 100 Mo. 237; Lemp v. Lemp, 249 Mo. 295; Wells v. Wells, 117 S.W. (2d) 700; Latta v. Latta, 39 S.W. (2d) 563; Howard v. Howard, 188 Mo. App. 564. (4) In awarding to appellant alimony, the court failed to take into consideration the undisputed fact that respondent had received income from the farm. Kistner v. Kistner, 89 S.W. (2d) 106, 113. (5) Under the evidence the trial court was not justified in placing high value on the 80 acres of land deeded to the wife, which it apparently did. (6) Where the wife had insufficient means to pay the expense of defending her rights in a divorce proceeding, the court should make a suitable allowance for that purpose to be paid by the husband. Smith v. Smith, 192 Mo. App. 99; Rutledge v. Rutledge, 177 Mo. App. 469; Davis v. Davis, 174 Mo. App. 538. (7) The allowance of suit money and counsel fees in a divorce action is largely discretionary with the court, but such discretion should be exercised in view of all the circumstances of the parties. The test is whether the wife is possessed of sufficient means on her part to prosecute the suit. In view of the fact that appellant is the injured party, that respondent's scandalous conduct has forced her to employ lawyers to defend and protect her rights, it was an abuse of the trial court's discretion to refuse to allow her suit money and attorney's fees. Gibson v. Gibson, 16 S.W. (2d) 646; Rutledge v. Rutledge, 177 Mo. App. 469; Smith v. Smith, 192 Mo. App. 99; Davis v. Davis, 174 Mo. App. 538; Stark v. Stark, 115 Mo. App. 436. (8) In considering appellant's motion for suit money and attorney fees, the trial court, apparently, in considering appellant's equitable right to an allowance for suit money and attorney's fees, as might be determined by the value of her own property and her ability to pay this herself, took into consideration the 80-acre farm which respondent had previously deeded to appellant. This was improper for the reason that, though respondent had conveyed the title to this 80 acres of land to appellant, the respondent continued to operate and control this farm as his own, receiving as his own all the rents, income, and profits of this 80 acres of land up to the time of the trial. Up to the time of judgment for divorce, appellant could not mortgage or sell this land without respondent's signature to the deed, for the purpose of raising funds. Her funds were, therefore, insufficient. Stark v. Stark, 115 Mo. App. 436.

George N. Davis for respondent.

(a) Respondent fails to assign any assignments of error, or statement of points upon which appellant relies for reversal of this judgment. Respondent is therefore unable to answer directly and in numerical order appellant's points and authorities. Respondent is unable to tell what application the several abstract statements of law set out in appellant's brief have to this case. (b) Respondent contends there are no sufficient assignments of error anywhere in appellant's brief to comply with rule seventeen (17) of this court and that there is nothing before this court to warrant a review of the case here. Miller v. Mut. Benefit Health & Accident Assn., 80 S.W. (2d) 201; Martin v. Bulgin, 111 S.W. (2d) 963; Kleine v. Kleine, 111 S.W. (2d) 243; Weaver v. Stephens et al., 78 S.W. (2d) 903; Schell v. F.E. Ransom Coal & Grain Co., 79 S.W. (2d) 543; Bennett v. Royal Union Mut. Life Ins. Co. et al., 112 S.W. (2d) 134; Diamant v. Stein et al., 116 S.W. (2d) 273; Smithers v. Barker, 111 S.W. (2d) 47; Martin v. Connor et al., 128 S.W. (2d) 309; American Employers Ins. Co. of Boston, Mass. v. Mfg. & Mech. Bk. of Kansas City et al., 85 S.W. (2d) 174; Wyatt v. Kansas City Art Inst. et al., 88 S.W. (2d) 210; Bennett v. Brotherhood of Locomotive Firemen and Enginemen, 82 S.W. (2d) 601; University Bk. v. Major, 83 S.W. (2d) 924; Kane v. Benz et al., 77 S.W. (2d) 855; Waters et al. v. Gallemore et al., 41 S.W. (2d) 870; Nelson v. Massman Const. Co. et al., 120 S.W. (2d) 77; Jeck v. O'Meara, 122 S.W. (2d) 897; Johnston v. City of St. Louis, 138 S.W. (2d) 666; Smithers v. Barker, 97 S.W. (2d) 121; Bullock v. Aetna Life Ins. Co. of Hartford, Conn., 76 S.W. (2d) 726; Butler v. Equitable Life Assur. Soc. of U.S., 93 S.W. (2d) 1019; Green v. Baum et al., 132 S.W. (2d) 665; State ex rel. Massman Const. Co. v. Shain et al., Judges, 130 S.W. (2d) 491. In Kleine v. Kleine, 111 S.W. (2d) 243, the court held that an assignment that court erred in not reducing alimony and maintenance of minor child more than $15 per month gave reviewing court a roving commission and was not entitled to consideration. And in Miller v. Mut. Benefit Health & Acc. Assn., 80 S.W. (2d) 201, this court said appellant's specifications under assignment of errors that judgment was for wrong party and excessive under pleadings, evidence and law of case present nothing for review. (c) Motion for suit money and attorney fees not being presented in either bill of exceptions or abstract of record, court ruling thereon cannot be reviewed. Rckenstein v. Rogers, 326 Mo. 468, 315 S.W. (2d) 792; Linneman v. Hawkins, 27 S.W. (2d) 1046.

BOYER, C.

In the above entitled case, appellant (defendant below) was granted a decree of divorce upon her cross-bill and was awarded alimony in gross in the sum of $1000, and at the same time the trial court overruled as defendant's motion for counsel fees and suit money. This appeal is from that part of the decree awarding alimony and a denial of counsel fees and suit money.

Respondent (plaintiff below) instituted this action and sought a decree of divorce from his wife on the ground of various alleged indignities. To this action the wife filed a general denial, and the case was originally heard on June 13, 1939, and held under advisement by the trial judge.

Thereafter, and on February 14, 1940, by leave of court, defendant filed her motion to reopen the case for additional testimony and to be permitted to file an amended answer and cross-bill. This motion was sustained on April 24, 1940, the case reopened, and defendant granted leave to file an amended answer and cross-bill on or before April 27, 1940. The amended answer and cross-bill was filed in time.

After admitting allegations in reference to the marriage and the children of the parties the answer denies all allegations of indignities toward the husband, and counters with the relation of a long story of indignities to which she had been subjected by her husband, and a protracted period of intolerable domestic conditions, all of which were attributable to numerous flagrant violations of the marital contract on the part of the husband. The answer alleges that the husband was possessed of real and personal property and money to the value of $8000, and has a gross income of approximately $250 per month; and that the wife has been without sufficient income and means of support since 1938, and is without such income and means of support for herself and for the prosecution of the suit. The prayer of the cross-bill is the following:

"Wherefore, defendant prays to be divorced from the bonds of matrimony contracted with the plaintiff and that the court will adjudge to her out of the property of plaintiff such alimony and such support and maintenance for herself and for such time as the nature of the case and the circumstances of the parties may require, in the sum or sums not less than $4000.00; and that, if necessary, plaintiff may be compelled to give security for such alimony and maintenance; and that the court will make such further orders and judgments from time to time, touching the premises, as to the court shall seem meet and just."

The plaintiff filed a reply to the amended answer and cross-bill denying each and every allegation therein contained, and reaffirmed every matter set out in his petition and asked that he be granted a divorce according to the prayer of his petition.

The record shows that counsel for the wife had filed a motion for suit money and attorney fees at the beginning of the proceeding. It was never pressed. When the case came on for further hearing defendant had procured additional counsel, and the court was requested to grant leave to file another motion for additional attorney fees and suit money. The court indicated then that there appeared to be no sufficient ground for such motion for the reason that the wife had property, but nevertheless granted leave for the filing of such a motion. It was disposed of, heretofore recited, in the judgment rendered by the court in which such allowance was denied.

The appeal appears to have been taken in due...