Creasey v. Creasey

• Decision Date: 03 June 1913
• Citation: 157 S.W. 862
• Parties: CREASEY v. CREASEY.
• Court: Missouri Court of Appeals

157 S.W. 862

CREASEY v. CREASEY.

St. Louis Court of Appeals. Missouri.

June 3, 1913.

Rehearing Denied June 17, 1913.

1. DIVORCE (§ 219) — ALIMONY PENDENTE LITE — EFFECT OF ALLOWANCE OF ALIMONY IN GROSS.

Rev. St. 1909, § 2375, provides that the court, on decreeing a divorce, may make such order as to the allowance and maintenance of the wife as may be reasonable, and, when the wife is plaintiff, may order the defendant to give security therefor, and may decree alimony pending the suit in all cases where the same would be just. The trial court, pending the determination of plaintiff's action for divorce, on March 4, 1911, ordered that he pay to defendant, his wife, certain attorney's fees and $40 per month as alimony until further order and thereafter judgment was entered awarding defendant's alimony in gross. Held, that the provision for alimony pendente lite applied only to the allowance of alimony until the matter of alimony was determined by final decree, after which no cause could be said to be pending, and the effect of it was to vacate the prior order for alimony, in so far as concerned payment under it after the entry of the final decree.

2. DIVORCE (§ 182) — ALIMONY AND ALLOWANCES — JURISDICTION.

Under Rev. St. 1909, § 2375, empowering a court to make orders for alimony subject to the right of the court, when a decree of divorce has been granted and is in force, to make alterations from time to time as may be proper, it is within the sole power of the circuit court, by final decree or by amendment, to decree alimony payable in gross, or in installments, or from month to month, or otherwise, and by final decree, in case of an appeal, to provide for the payment of suit money, counsel fees, and alimony pending the appeal, and such power does not rest in the court on appeal.

Appeal from Circuit Court, Pike County; B. H. Dyer, Judge.

Action for divorce by Mason Creasey against Carrie B. Creasey. From an order denying his motion to quash an execution for an installment of alimony pendente lite, plaintiff appeals. Reversed.

See, also, 151 S. W. 215.

Fry & Rodgers, of Mexico, Mo., and J. D. Hostetter, of Bowling Green, for appellant. C. A. Barnes and D. A. Murphy, both of Mexico, Mo., for respondent.

REYNOLDS, P. J.

Pending the determination of a suit for divorce between these parties, in which suit the wife, defendant, had filed an answer in the nature of a cross-bill, the circuit court of Pike County, in which the action was pending on change of venue from the Audrain Circuit Court, on the 4th of March, 1911, entered up the following order, properly entitled in the cause: "Now at this day come the parties herein by their respective attorneys, and the motion for alimony, attorney fees and suit money filed herein by the defendant coming on to be heard and being seen, heard and duly submitted is by order of court sustained and it is ordered by the court that plaintiff pay to defendant the sum of $150 attorney's fees and the further sum of $40 per month alimony the first installment due and payable this day and further installments due and payable on the fourth day of each succeeding month until otherwise ordered by the court and it is further ordered and adjudged by the court that the defendant have and recover of and from the plaintiff all costs and charges in and about this motion laid out and expended and may have execution therefor."

The husband (plaintiff) complied with the order of the court and paid the first installment of $40 on March 4, 1911, but failed to pay the second and third installments of the alimony until an execution was issued and placed in the hands of the sheriff of Audrain county, the county of the residence of the plaintiff, under which levies were made and the execution satisfied. Not paying the fourth installment, due on the 4th of June, 1911, or any installment since that time, execution was issued for the June installment. The plaintiff thereupon filed his motion in the circuit court of Pike county to quash it. After hearing the testimony introduced by plaintiff and the defendant, the court declined to quash the execution. From an order to that effect plaintiff has duly perfected his appeal to this court.

The ground of refusal to pay this installment, due in June, 1911, and the ground upon which the motion to quash the execution is based, is, that after the entry of the order of March 4, 1911, for the payment of further alimony pendente lite, judgment had been entered in the divorce suit, awarding the defendant alimony in gross and that by force of this decree, the order for payment of monthly alimony pending the suit, was no longer operative.

The divorce case itself came on for hearing in the circuit court of Pike county and about March 12th was tried on the merits. On March 16, 1911, a decree was entered against the plaintiff, dismissing his suit and awarding the defendant a divorce on her answer. The decree further adjudged that defendant "have and recover from [plaintiff] as and for alimony in gross the sum of $2,500 and for additional attorney's fee the further sum of $100, and that she have and recover her costs in this behalf expended and that she have execution therefor." The plaintiff duly perfected his appeal from this decree, executing an appeal bond, duly approved by the circuit court. Afterwards, the divorce case coming on for hearing before our court, a decree was entered here reversing the judgment of the circuit court in toto, and remanding the cause, "with directions to the circuit court to enter its judgment that the plaintiff take nothing by his petition and that the defendant take nothing by her answer, the defendant, however, to have and recover her costs in this behalf expended, the matter of an allowance to defendant for attorney's fees for services here and in the circuit court" being remitted to the circuit court. This judgment of reversal was entered by our court on the 12th of November, 1912. See ...