O'Brien v. O'Brien

• Decision Date: 03 October 1972
• Docket Number: Nos. 34358,34429,s. 34358
• Citation: 485 S.W.2d 674
• Parties: Rose Marie R. O'BRIEN, Plaintiff-Respondent, v. Philip J. O'BRIEN, Defendant-Appellant. . Louis District
• Court: Missouri Court of Appeals

Page 674

485 S.W.2d 674

Rose Marie R. O'BRIEN, Plaintiff-Respondent, v. Philip J. O'BRIEN, Defendant-Appellant.

Nos. 34358, 34429.

Missouri Court of Appeals, St. Louis District.

Oct. 3, 1972.

Lawrence O. Willbrand, St. Louis, for defendant-appellant.

John P. Sullivan, Clayton, Gerald Cohen, St. Louis, for plaintiff-respondent.

BRADY, Chief Judge.

After filing her petition for divorce plaintiff wife initiated this action for alimony and child support pendente lite, as well as attorney's fees. The court awarded the sum of $125.00 per month, $250.00 per month, and $500.00 on account respectively for these purposes. Defendant filed notice of appeal whereupon plaintiff moved for attorney's fees and costs on appeal and was granted $350.00 for attorney's fees and $75.00 for costs. Defendant appeals that order as well, and the cases have been consolidated in proceedings before us. The custodial awards are not preserved for our review.

The divorce action was initiated by a petition filed on March 27, 1971 setting forth allegations of general indignities as grounds for a divorce. In support of her motions plaintiff testified that she and defendant had been married 27 years and had 4 children, thre of whom were still minors; the parties had agreed that plaintiff would have temporary custody of the two minor girls and defendant would have custody of the minor son pending the final divorce; plaintiff had been and was at the time of the hearing living in the residence owned by plaintiff and defendant because she did not have any furniture; that while living there defendant had provided plaintiff and her children with all the necessities; and that plaintiff had rented a three bedroom apartment the rent on which was to commence three days after the hearing.

Regarding her income and expenses, plaintiff testified that she had been employed for approximately six months with a take-home pay of $349.46 per month. She estimated total expenses at $905.00 per month, these consisting of rent at $295.00, living expenses for her and the two daughters at $450.00, and miscellaneous expenses at $160.00. Defendant's income and expense statement showed that he had a take-home pay of $580.00 per month from the restaurant, his monthly expenses amounted to approximately $815.00 consisting of living expenses for himself and one child at $300.00, home expenses at $184.00 and miscellaneous expenses at.$331.00.

The financial statements of the parties need not be detailed here. It is sufficient to state that granting each their proper share of jointly owned property as indicated by the evidence after deducting therefrom the proportionate obligation of each in any mortgages or debts against such property, the assets of the plaintiff were shown to be $50,700.00 of which amount $17,000.00 was in a savings account. The assets of the defendant were shown to be $68,000.00 of which amount $15,000.00 was in a savings account. The defendant has $14,300.00 in stock of which some $12,500.00 is in stock in the corporation which owns the business which he manages and in which he has a half interest. Plaintiff is not shown to have any other stock. The other assets of the parties from which their total assets is derived represents the proportionate ownership of each in the home, equities in certain real estate and in certain automobiles, household furnishings, and life insurance at cash value.

Defendant's gross income the preceding year, as reported on his income tax returns, was $22,643.00. Defendant indicated that this included income from another restaurant owned by him and his wife which they had given to their oldest son the preceding year. The defendant also indicated that a $5,000.00 bonus from O'Brien's restaurant for the preceding two years was included, this bonus being applied to the vacant lot the parties jointly owned. His other assets consisted of $15,000.00 in savings accounts, approximately $6,000.00 in household furnishings and furniture, and approximately $1,800.00 in stocks and bonds other than the B.O.S. Enterprise.

At the hearing on plaintiff's motion on appeal held on November 12, 1971 before another division of the circuit court, plaintiff reiterated much of her testimony from the previous hearing. She also stated that she had not received any money from defendant since before the original hearing; she had consumed approximately $2,000.00 of the savings she previously had to support herself; she did not have funds necessary to pay attorney's fees and costs on appeal; and that the youngest daughter was living with her continuously while the older daughter visited on occasion. On cross-examination plaintiff further testified that the minor son and the adult son were living with defendant and the one minor daughter lived part-time with him and part-time with her. Thereafter the court ordered defendant to pay attorney's fees and costs. Defendant appealed.

Defendant's first allegation of error is that the court erred in granting plaintiff's original motion for allowances because the evidence showed plaintiff was living with defendant in their residence at the time of the hearing. Defendant's argument is based on this court's opinion in Adams v. Adams, 49 Mo.App. 592, wherein it was stated at l.c. 599 that spouses must be living separately during the pendency of the suit for divorce in order to warrant an award of alimony pendente lite in favor of the wife. In the case of Lipp v. Lipp, Mo.App., 117 S.W.2d 364 the same contention was considered by the Kansas City Court of Appeals. The opinion in that case correctly pointed out that the above quoted statement in Adams was dicta to the decision and not of controlling authority. The court then stated (l.c. (3) 366) that the plaintiff and defendant could be living separate and apart from each other notwithstanding the fact that they were sheltered under the same roof. Downing v. Downing, Mo.App., 279 S.W.2d 538.

We agree with the decision in Lipp and Downing. The statement in Adams is not controlling of the issues here. This ruling is particularly applicable to the case at bar where all agree the pleadings and proof show the parties to be living separate and apart as far as their marital relationship. Plaintiff had filed her petition for divorce the validity and good faith of which are not questioned...