Couplin v. Couplin
| Decision Date | 08 November 1938 |
| Docket Number | No. 24765.,24765. |
| Citation | 121 S.W.2d 186 |
| Court | Missouri Court of Appeals |
| Parties | COUPLIN v. COUPLIN. |
Appeal from St. Louis Circuit Court; Eugene L. Padberg, Judge.
"Not to be published in State Reports."
Divorce action by Edna N. Couplin against LeRoy E. Couplin. From an order sustaining the defendant's motion to modify a decree of divorce with respect to the matter of alimony, Edna N. Couplin appeals.
Reversed and remanded, with directions.
William J. Blesse, Rozier Meigs, and William Kohn, all of St. Louis, for appellant.
Feigenbaum, Nations & McCormick and Gus O. Nations, all of St. Louis, for respondent.
This is an appeal by the wife from an order of the Circuit Court of the City of St. Louis sustaining the husband's motion to modify a decree of divorce with respect to the matter of alimony. We shall refer to the parties as plaintiff and defendant, as styled below.
In October, 1935, plaintiff obtained a decree of divorce from her husband and an allowance of $100 as attorney's fees and $40 a month alimony.
As to the financial condition of the parties at the time of the trial of the divorce case, the evidence tended to prove that the husband owned no real estate and no personal property excepting an automobile, and that he had an income of $150 per month as a member of the Board of Aldermen of the City of St. Louis. The wife had no property of her own and was not employed.
In March, 1937, the former husband filed a motion to modify the judgment respecting the monthly alimony, and for grounds of his motion alleged that since the entering of the divorce decree his former wife had obtained employment at which she was earning an amount sufficient to support herself; that he himself had no income other than that which he had testified to at the time of the trial of the divorce case; that he had recently been ill and "had incurred a large expense" for medical, nurses and hospital services, and that he had no property out of which to pay the alimony judgment, and prayed that the court modify the judgment and "discontinue monthly payments at $40 a month therein adjudged to be due to the plaintiff for her maintenance and support, and for other proper relief."
Thereupon plaintiff filed a motion to strike defendant's motion to modify the alimony portion of the decree from the files on the ground that the defendant had not complied with the court's order requiring him to pay her $40 monthly alimony, $100 attorney's fee and the court costs; and plaintiff further filed a separate motion that defendant be required to pay the accrued court costs in the divorce action and the $100 allowance for attorney's fee before he be permitted to proceed with his motion to modify.
In the latter part of March, 1937, defendant's motion to modify the judgment as to alimony, and plaintiff's two motions outlined above, were heard together and taken under advisement, and on May 18, 1937, the court overruled plaintiff's motion to strike defendant's motion from the files; sustained plaintiff's motion that the defendant be required to pay the accrued court costs and the attorney's fee; and sustained defendant's motion to modify the alimony judgment in the following respect: "So that from the date hereof, until the further order of the court, the allowance of monthly alimony, at the rate of $40 per month, to the plaintiff cease, and that the defendant make no monthly payments of alimony to the plaintiff, and in lieu and instead thereof, the plaintiff have and recover of the defendant, as and for alimony in gross, the sum of $200, payable forthwith, and that the defendant pay the unpaid costs of this proceeding and that execution issue therefor." Plaintiff in due course appealed.
While in this state an action for divorce is a statutory suit at law and not a suit in equity, it does, nevertheless, partake of the nature of a suit in equity and is triable as such in the circuit court, and de novo as such on appeal. O'Neil v. O'Neil, Mo.App., 264 S.W. 61. Our supreme court en banc, in the course of its opinion in Nelson v. Nelson, 282 Mo. 412, 221 S.W. 1066, loc. cit. 1069, as to permanent alimony, said it ...
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...Shapiro v. Shapiro, Mo.App., 238 S.W.2d 886, 889(1); State ex rel. Scott v. Harris, Mo.App., 136 S.W.2d 78, 80(1); Couplin v. Couplin, Mo.App., 121 S.W.2d 186, 187(2). Of course, the burden of showing such change rests upon the movant. Samland v. Samland, Mo.App., 277 S.W.2d 880, 881(4); Se......
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...partake of the nature of a suit in equity and is triable as such in the circuit court, and de novo as such on appeal. Couplin v. Couplin, Mo.App., 121 S.W.2d 186; O'Neil v. O'Neil, Mo.App., 264 S.W. In appeals in divorce cases and collateral issues arising thereunder, where there is a confl......
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...Shapiro v. Shapiro, Mo.App., 238 S.W.2d 886, 889(1); State ex rel. Scott v. Harris, Mo.App., 136 S.W.2d 78, 80(1); Couplin v. Couplin, Mo.App., 121 S.W.2d 186, 187(2). Of course, the burden of showing such change rests upon the movant. Samland v. Samland, Mo.App., 277 S.W.2d 880, 881(4); Se......
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