Brown v. Brown

• Decision Date: 04 April 1922
• Docket Number: No. 16752.,16752.
• Citation: 209 Mo. App. 416,239 S.W. 1093
• Parties: BROWN v. BROWN.
• Court: Missouri Court of Appeals

239 S.W. 1093

209 Mo. App. 416

BROWN v. BROWN.

No. 16752.

St. Louis Court of Appeals. Missouri.

April 4, 1922.

Appeal from St. Louis Circuit Court; Benjamin J. Klene, Judge.

Suit for divorce by Edmund M. Brown against Sarah E. Brown, in which a divorce with alimony was awarded to the defendant wife. From an order modifying the decree so as to increase the amount of alimony, plaintiff appeals. Affirmed.

Clarence T. Case, Victor S. Miller, and David W. Voyles, all of St. Louis, for appellant.

Bert F. Fenn, of St. Louis, for respondent.

BECKER, J.

This is an appeal from an order modifying a decree of divorce entered in favor of the wife, In so far as the said decree relates to alimony.

The husband, plaintiff below and appellant here, instituted a suit for divorce. The wife filed an answer and cross-bill praying a divorce be granted her. Thereafter the parties entered into a stipulation that, in the event, upon a hearing of the cause, a divorce be granted to the wife—

"a judgment for alimony in the sum of $75 per month shall be entered against the plaintiff and in favor of the defendant, said $75 per month alimony to be paid on the first of each and every month thereafter in a lump sum, while the defendant remains single and unmarried. * * *"

The case came on for hearing on February 23, 1918, and, plaintiff having in the meantime dismissed his cause of action for divorce, the court proceeded to hear the defendant on her cross-bill. At the conclusion of the case the court entered a decree of divorce in favor of the wife and in the decree provided for alimony as follows:

"Thereupon the parties hereto filed and submitted to the court a stipulation, upon consideration of and in accordance with the terms of which it is further ordered and adjudged and decreed," that the defendant recover, "as for her alimony, and until the further order of the court, the sum of $75 per month, so long as the defendant remains single and unmarried. * * *"

On October 16, 1918, the wife moved for a modification of the said decree as to alimony, said motion being based upon several grounds, among them being that the allowance of $75 per month theretofore awarded her was not sufficient to maintain her according to her former station in life; that her former husband was now receiving a salary of $6,000 per year, whereas at the time the divorce decree was entered he was earning but $4,000 per year, and that, since the decree was entered, the cost of living had materially increased.

When the wife's motion to modify the decree came on for hearing, counsel for the husband objected to the introduction of any testimony in support thereof on the ground that the motion did not allege facts sufficient to give the court jurisdiction over the case since judgment for alimony was entered upon stipulation of the parties, and was therefore a consent judgment. The court overruled this objection, heard the testimony, and sustained the motion to modify the decree in so far as it required the payment by the husband to the wife of $75 per month, and ordered and directed the husband on and after March 1, 1919, to pay the wife the sum of $140 per month. In due course the husband appeals.

The sole question presented on this record is whether the circuit court, having granted a divorce and embodied in the decree, in conformity with a stipulation of the parties, an order directing the husband to pay the wife monthly alimony "until a further order of the court," has the power, upon proper motion filed in the original cause, at a subsequent term, to modify the decree as to alimony. We unhesitatingly rule that the court has such jurisdiction.

It is specifically provided by section 1812, R. S. Mo. 1919 (formerly section 2381, a. S. Mo. 1909), that—

"No petition for review of any judgment for divorce, rendered in any case arising under this article, shall be allowed, any...