Chapman v. Chapman

• Decision Date: 02 February 1917
• Docket Number: No. 19648.,19648.
• Citation: 269 Mo. 663,192 S.W. 448
• Parties: CHAPMAN v. CHAPMAN et al.
• Court: Missouri Supreme Court

192 S.W. 448

269 Mo. 663

CHAPMAN v. CHAPMAN et al.

No. 19648.

Supreme Court of Missouri, Division No. 2.

February 2, 1917.

Appeal from St. Louis Circuit Court; George H. Shields, Judge.

Action by Fannie P. Chapman against Fred. E. Chapman and Walter Chapman. A judgment granting plaintiff a decree of divorce, but denying alimony, and dismissing the bill as to Walter Chapman, was reversed by the St. Louis Court of Appeals (185 S. W. 221); the case being certified to the Supreme Court on dissent. Judgment of Court of Appeals reversed, and that of trial court affirmed.

Plaintiff sued for divorce and alimony. The trial court granted the divorce, but refused the alimony. She appealed to the St. Louis Court of Appeals, where, in an opinion by Allen, J., the judgment was reversed and the cause remanded. Reynolds, P. J., filed a dissenting opinion, and deemed the majority opinion in conflict with Moss v. Fitch, 212 Mo. 484, 111 S. W. 475, 126 Am. St. Rep. 568, and State ex rel. v. Blair, 238 Mo. 132, 142 S. W. 328. The cause was accordingly certified to this court. Both the opinions in the Court of Appeals and that of Judge Shields of the trial court are found in 185 S. W. 221. The suit was begun September 1, 1914. Successive writs of summons were returned "Not found."

On August 5, 1915, she filed an amended petition in which Walter Chapman, a brother of the original defendant, was made a party defendant. It alleged the necessary residence of the plaintiff in the city of St. Louis, and also alleged indignities, vagrancy, desertion, and failure to support as the grounds of divorce. It also alleged that she was without means of support; that defendant purchased and paid for two pieces of real estate therein described, one in the city and the other in the county of St. Louis, and had the title thereto put in the defendant Walter Chapman, who paid nothing therefor, and who was holding the title in trust for Fred E. Chapman; that said Fred E. Chapman had absconded and absented himself from his usual place of abode in this state, and had concealed himself so that the ordinary process of the law could not be served upon him; that defendant Walter Chapman was a nonresident of the state, and could not be served in this state in the manner prescribed by law. There was no allegation that the title to the land was put in Walter Chapman in fraud of plaintiff's rights. The prayer for relief was as follows:

"Plaintiff therefore prays for an order of publication against both defendants, and that plaintiff be divorced from the bonds of matrimony contracted as aforesaid with the defendant Fred E. Chapman, and that the court will adjudge to her permanent alimony in gross for her support and maintenance and alimony pendente lite and her attorney's fees and suit money and costs and enforce and establish the same as a lawful right, claim and demand to and against said real estate within the jurisdiction of this court, and enforce the performance of the judgment by sequestration of said property and such other lawful ways and means as is according to the practice of the court, that a receiver be appointed to take charge of said property, that the defendants be enjoined from selling or in any wise disposing of or incumbering or injuring said property, and that plaintiff be restored to her former name, Fannie P. Price, and to make such further orders and judgments touching the premises as may be proper."

There was an order of publication which was duly published, and which recited all the facts stated in the petition, including the description of the real estate and the prayer for relief as made in the petition.

Both defendants made default. The evidence in every respect supported the allegations of the petition. The plaintiff's evidence was a pitiful narration of the brutal treatment, neglect, and desertion of plaintiff by her husband. The evidence showed each of the properties to be worth something over $4,000, with an incumbrance of $2,000 on each, and that the title was put in Walter Chapman prior to the marriage of plaintiff with Fred E. Chapman. The trial court found that the property belonged to Fred E. Chapman, and gave plaintiff a divorce, but refused a judgment for alimony, on the ground that the court had no jurisdiction on a constructive service to render a judgment for alimony.

Henry H. Oberschelp, of St. Louis, for appellant.

ROY, C. (after stating the facts as above).

The fact that the able jurists, including the trial judge, who have passed on this case are equally and radically divided prompts us to proceed with extreme caution.

I. It should be conceded that the jurisdiction of the courts in this state to hear and determine suits for divorce and alimony depends upon and is limited by the statutes. Doyle v. Doyle, 26 Mo. 545; McIntire v. McIntire, 80 Mo. 470; State ex rel. v. Grimm, 239 Mo. 340, 143 S. W. 450, Ann. Cas. 1913B, 1188.

II. On the other hand, the action for divorce and alimony, the defenses thereto, and the proceedings therein, are, as far as suited to our day, and situation, controlled by the law of the English ecclesiastical courts (common law with us) as modified changed, or, in some matters, supplanted by our statutes.

In Stokes v. Stokes, 1 Mo. 320, it was said:

"The proceeding in this case is not a common law, or chancery proceeding, but is a proceeding sui generis, founded on the statute. But as the statute makes use of terms used in the ecclesiastical courts, where alone divorces are prosecuted in England, we think the rules of that court should govern, so far as they may be applicable to our institutions in law."

In Twyman v. Twyman, 27 Mo. 383, Scott, J., who had then recently written the Doyle Case, supra, held that condonation would defeat the action for divorce. The doctrine as to condonation comes from the ecclesiastical law (1 Bishop on Marriage and Divorce, p. 129), and not from our statute. In State ex rel. v. St. Louis Ct. of App., 99 Mo. 216, 12 S. W. 661, it was said:

"Payment of such alimony may undoubtedly be enforced by execution and sequestration of property. But the power of the court does not end here. Though we have no ecclesiastical courts, still original jurisdiction in divorce matters is conferred upon the circuit courts; and since we have adopted the common law we have also adopted the English practice, so far as it relates to the substantial rights of the parties, except as the common law is modified by statute. Morton v. Morton, 33 Mo. 614; Waters v. Waters, 49 Mo. 386; Crews v. Mooney, 74 Mo. 26; 1 Bishop on Marriage and Divorce (6th Ed.) § 86. Taking away privileges in the cause is sometimes resorted to to enforce payment of alimony awarded pending the litigation. 2 Bishop on Mar. and Div. (6th Ed.) § 498; 1 Am. & Eng. Ency. of Law, 485-486; Walker v. Walker, 20 Hun [N. Y.] 400. It is said that the failure of the husband to pay alimony will in extreme cases only justify the court in striking out his answer; but when he is the plaintiff his failure or refusal to obey such an order will warrant the dismissal of the cause."

This court in Re Gladys Morgan, 117 Mo. 249, 21 S. W. 1122, 22 S. W. 913, said:

"The circuit court exercising ecclesiastical powers in divorce proceedings is governed, as to the substantial rights of the parties, by the common-law practice in such cases, except as modified by statute law."

Mangels v. Mangels, 6 Mo. App. 481, did not hold that divorce is a strictly statutory proceeding, but did say (6 Mo. App. loc. cit. 483) that the ecclesiastical law should be followed, "having regard, of course, to the altered conditions of things here, the spirit of our laws, and any modifications introduced by statute."

In Keller v. St. Louis, 152 Mo. 596, 54 S. W. 438, 47 L. R. A. 391, the plaintiff sued as the mother of a minor child for personal injuries to the child. The parents of the child had been divorced by a decree which gave the mother the "care and custody" of the child, saying nothing about its maintenance. It was held that as the duty of maintenance was on the father, he alone could sue for injuries to the child. This court then said:

"The statute provides that, `When a divorce shall be adjudged, the court shall make such order touching the alimony and maintenance of the wife, and the care, custody and maintenance of the children, or any of them, as from the circumstances of the parties and the nature of the case, shall be reasonable.' R. S. 1889, § 4505. Divorce as known to our law is the creature of statute, and the power the court has over the rights and liabilities of the husband and wife is to be measured by the terms of the statute. In the decree in this instance, no order was made `touching the maintenance of the children.' The order made was limited to the `care and custody' of the children, which were awarded to the plaintiff. So far as this decree is concerned, the duty of maintenance and the correlative right to the service of the children were left just where they were before the decree was entered unless the order transferring the right of the husband to the care and custody of the children, to the wife, had the effect, ex vi termini, of transferring, to her, his duty of maintenance, with its reciprocal right to the services of the children."

With all due respect, we suggest that though the statute was well applied to the facts in that case, yet, in so far as the language there used was broader than the facts called for, it was obiter dictum, and not in accordance with the well-recognized law in this state. The same may be said of Creasey v. Creasey, 175 Mo. App. loc. cit. 241, 157 S. W. 863, where it was said, "Divorce, with its incidents, is, in our state, entirely a statutory proceeding." No authorities are cited in either of those cases.

III. It follows as a necessary result from what is said above, that a proceeding for divorce and alimony is an action at law, unless our statutes have in some particular made it a...