Crooks v. Crooks
| Decision Date | 19 November 1946 |
| Docket Number | 27032 |
| Citation | 197 S.W.2d 686 |
| Parties | CROOKS v. CROOKS |
| Court | Missouri Court of Appeals |
'Not to be reported in State Reports.'
J Grant Frye and Gerald B. Rowan, both of Cape Girardeau, for appellant.
Jack O Knehans, of Cape Girardeau, for respondent.
BENNICK PER CURIAM
This is an appeal from the order overruling the motion of the defendant wife for an allowance of an attorney's fee and suit money in connection with her defense of the proceeding instituted by the plaintiff husband to modify the decree of divorce as regards the custody of the minor children of the parties.
The principal proceeding is the one involved in Crooks v. Crooks, Mo.App., 197 S.W.2d 678, the opinion in which is handed down herewith.
In his answer to the motion for the allowance of an attorney's fee and suit money, plaintiff advanced two defenses, the first, that by virtue of the decree of divorce in his favor, he had been relieved of any obligation to maintain and support defendant, or to provide her with an attorney's fee and suit money in this proceeding; and the second, that prior to the entry of the decree of divorce, defendant had executed an instrument of release whereby she had released him from any and all claims and demands of any kind or character, and from any and all rights and benefits under the law relating to husband and wife.
Omitting immaterial parts, such instrument of release read as follows:
'I, Jessie Stacy Crooks, of the City and County of Cape Girardeau, State of Missouri, at the date of these presents the lawful wife of James G. Crooks, in consideration of the sum of One ($ 1.00) Dollar to me in hand paid, receipt whereof is hereby acknowledged, and for other good and valuable considerations, receipt whereof is hereby acknowledged, and in further consideration of a mutually agreeable division of certain household goods, such division hereby acknowledged, do hereby release, acquit and forever discharge the said James G. Crooks, of any and all rights, title and interest which I, the undersigned Jessie Stacy Crooks, may have acquired or which I may hereafter acquire, during the lifetime of the said James G. Crooks, or at and after his death, by reason of the marriage that now subsists between said parties, in and to all and any property, both personal, real and mixed, which now is or hereafter during the lifetime or at the death of the said James G. Crooks may be owned by the said James G. Crooks.
'I hereby state that I am completely familiar with the circumstances, financial resources and income of the said James G. Crooks, and it is my intention hereby to release and waive all benefits of the laws of the State of Missouri, or any other state, relating to husband and wife, dower, homestead, alimony, support and maintenance, etc., and forever bar myself from any action, either at law or equity, to recover any interest, judgment, sum or sums of money or other property.'
Evidence was heard on defendant's motion, and the same was then taken under advisement until the completion of the hearing on plaintiff's motion to modify the decree, when the court, in conjunction with its ruling on plaintiff's motion, entered an order overruling defendant's motion for the allowance of an attorney's fee and suit money.
As grounds for its action in overruling defendant's motion, the court held, first, that defendant, by the release in question, had fully and completely released plaintiff from any and all liability for suit money or expenses incurred by her in connection with her defense of the proceeding to modify the decree with respect to the custody of the minor children; and second, that having been adjudged to be the guilty party in the action for divorce, defendant had thereby lost all her marital rights against plaintiff.
Defendant thereupon filed her motion for a new trial; and this being overruled, she has prosecuted her appeal pursuant to a special order issued by this court.
For her first point defendant challenges the correctness of the court's holding that inasmuch as plaintiff had been awarded a decree of divorce, she no longer had the right to have recourse against him for an attorney's fee and suit money for the defense of his motion to modify the decree as respects the custody of the minor children.
It is true that the decree of divorce had become final so far as concerned its determination of the issue of the further status of the parties. Its consequence had been to convert their status from coverture to that of single persons, and defendant was unquestionably no longer plaintiff's wife. However the action for divorce, under the circumstances of the case, had invested the court with a jurisdiction which did not end with the mere determination of the further status of the parties themselves. There being minor children within plaintiff's physical control, it had acquired jurisdiction to adjudicate with respect to their custody; and this jurisdiction was a continuing one during the minority of the children. For the purpose of the exercise of such jurisdiction, the action remained pending during the minority of the children; and in this proceeding on plaintiff's motion to modify the decree, which was a continuation of the original action, the court had the power to make an allowance to defendant of an attorney's fee and suit money so as to enable her to resist the motion. Smith v. Smith, 151 Mo.App. 649, 132 S.W. 312, opinion adopted, 164 Mo.App. 439, 144 S.W. 1199; Haagen v. Haagen, Mo.App., 11 S.W.2d 757; Sec. 1519, R.S.Mo.1939, Mo.R.S.A. § 1519.
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