Curtis v. Curtis

• Decision Date: 30 January 1973
• Docket Number: Nos. 9205,9269,s. 9205
• Parties: Edgar CURTIS, Plaintiff-Appellant, v. Jane Maxine CURTIS, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 29

491 S.W.2d 29

Edgar CURTIS, Plaintiff-Appellant, v. Jane Maxine CURTIS, Defendant-Respondent.

Nos. 9205, 9269.

Missouri Court of Appeals, Springfield District.

Jan. 30, 1973.

Harold Henry, West Plains, for plaintiff-appellant.

Esco V. Kell, Newton C. Brill, West Plains, for defendant-respondent.

BILLINGS, Judge.

Plaintiff-husband has appealed from the trial court's order granting defendant-wife a new trial following a decree of divorce to her, but without alimony or attorney fees, on her cross-bill. Plaintiff has lodged a second appeal from the lower court's allowance of temporary alimony pending the appeal and an allowance of attorney's fees and suit money for the appeal. The appeals have been consolidated.

The parties were married in 1938 and separated in 1966. On October 6, 1969, the husband filed his petition for divorce. Three days later the wife filed her answer and on November 5 filed her motion for suit money, attorney fees and alimony pendent lite. On November 21 she was awarded $125.00 weekly for temporary alimony and $250.000 for her attorney fees 'on account'.

The suit remained dormant until September 25, 1971, at which time the wife filed an amended answer and a cross-bill. The cross-bill was in three counts with the first seeking a divorce, alimony and attorney fees. The remaining counts were for an accounting and partition, respectively. Husband's reply on October 2, 1971, joined the issues raised in the cross-bill. On October 6, 1971, the parties and their attorneys appeared for trial. Plaintiff dismissed his petition and the wife proceeded on her count for divorce with the remaining counts being continued to November 19, 1971. During the presentment of her evidence for a divorce the wife testified she was not asking for alimony; that all she was asking for was a divorce; that she understood she was to pay her own attorney fees, and by not getting any alimony in the proceeding she could never get any alimony. Cross-examination of the wife was limited to having her acknowledge payment in full of temporary alimony. The trial court awarded the wife a divorce and set Counts II and III for trial November 19.

Fourteen days later, on October 20th, the wife, (with new counsel), filed her motion for new trial seeking '. . . (A) rehearing and a new trial on the issue of the allowance of alimony and attorney fees requested in Count I of defendant's Cross-Bill, or in the alternative, defendant requests a new trial on all issues submitted in her Cross-Bill . . .'. As grounds for her request she alleged the following: '1. The trial court erred in failing to enter an order awarding defendant alimony after finding that she was the innocent and injured party. 2. That in failing to enter an order awarding her alimony, the Court failed to take into account and apply the provisions of 452.070 RSMo (v.a.m.s.) 3. That the court erred in failing to award alimony in that such failure was against the law and the evidence before the court. 4. The Court erred in failing to enter a final order with regard to all issues raised by the pleadings and more particularly failed to make any findings consistent with failure to award alimony as parayed for in Count I of defendant's Cross-Bill. 5. The court erred in failing to make a final appealable judgment under the pleadings. 6. Defendant prayed for alimony in gross in Count I of her Cross-Bill and defendant did not waive her right to the alimony requested, or in the alternative defendant was coerced by plaintiff and by her own attorney to proceed with the hearing on Count I of her Cross-Bill without mentioning her demand for alimony and such coercion amounted to fraud both upon defendant and this court.'

At the hearing on the motion for new trial the husband assumed the laboring oar and offered the testimony of the wife's original attorney and the transcript of the testimony of the October 6 proceeding. In summary, the attorney testified that as a result of several conferences with the husband's attorney and his former client (the wife) on the morning of the trial, aimed at settling some of the issues, it was agreed the husband would dismiss his petition, the wife would abandon any claim for alimony and further attorny fees and proceed on her cross-bill for a divorce; that the remaining counts would be disposed of on November 19. He denied coercing his client and said that on October 6 his client was not any more distraught and upset than she usually had been in conferences with him about the matter in the preceding two years. The husband's attorney made a statement into the record that it was pursuant to an agreement reached as a result of negotiations that he dismissed his client's petition on October 6.

In support of her motion the wife testified that prior to the time her cross-bill for divorce was presented her attorney said 'now we can't get any alimony today' or 'can't get any alimony' and she was surprised but then he said 'well, we might be lucky to get five thousand dollars.' Under cross-examination she acknowledged that on the day of the trial she was aware ther were negotiations between her attorney and plaintiff's attorney concerning the alimony. However, she denied her attorny discussed with her the various propositions concerning a settlement then testified her attorney told her 'we couldn't get any alimony.' She said she had asked for alimony and had expected alimony but did not deny that at the trial she was asked about alimony by her attorney. She was aware her husband had dismissed his petition and that she was permitted to proceed on her cross-bill for divorce and '. . . (I) was under the impression that if I didn't take any action whatsoever that it would seem as if I was the guilty party. So therefore I took this action which I did.'

The court thereupon entered its order sustaining the wife's motion for a new trial but without specifying the ground or grounds for such action, and the first appeal followed. Thereafter the wife filed her motion for 'attorneys fees pending appeal'. The payer of this motion also requested alimony pending the appeal and following a lengthy hearing on January 18, 1972, the court entered judgment in favor of the wife for $65.00 a week for temporary alimony, attorney fees in the sum of $500.00 and $50.00 for suit money. The husband's motion for new trial was overruled and he filed his second appeal to this court.

In these consolidated appeals our initial duty is to ascertain whether we have appellate jurisdiction. State ex rel. Beeler v. City of Raytown, Mo., 439 S.W.2d 481; Williams v. Williams, Mo.App., 480 S.W.2d 525; Herndon v. Ford, Mo.Ap. 470 S.W.2d 168. Defendant has suggested the judgment is not final, and inferentially at least, the appeal on Count I is premature.

The right of appeal is purely statutory and, when not granted by statute, no such right exists. Rule 81.01, V.A.M.R. (formerly 82.01); Williams v. Williams, supra, 480 S.W.2d at 526. And if we were limited to that portion of § 512.020, RSMo 1969, V.A.M.S., which extends the right of appeal only to parties who may be aggrieved by any final judgment in the case, a judgment being defined as 'the final determination of the right of the parties in the action' (Rule 74.01, V.A.M.R. § 511.020, RSMo 1969, V.A.M.S.) we would have to dismiss the appeal of our own motion Kansas City Power and Light Company v. Kansas City, Mo., 426 S.W.2d 105; Williams v. Williams, supra; Herndon v. Ford, supra. This for the reason that defendant's remaining counst for an accounting and partition have not been determined.

However § 512.020 is not so limited, as was ruled in Travagliante v. J. W. Wood Realty Company, Mo., 425 S.W.2d 208. The statute also permits an appeal from any order granting a new trial. In Travagliante the court held the right to appeal an order granting a new trial existed notwithstanding there were other counts remaining undisposed of after its entry.

Having concluded we have jurisdiction we turn first to the action of the trial court in granting defendant a new trial on her count for divorce. The record entry is as follows: 'Thereafter, on November 19, 1971, Motion for New Trial was argued and sustained by order of the Court.'

Since the lower court did not comply with Rule 78.01, V.A.M.R., which requires specification of the ground or grounds for granting a new trial to defendant, the scope of our review is narrow. In the absence of such grounds, a different set of principles governs our review. As stated in Northeast Missouri Power Coop. v. Todd, Mo.App., 401 S.W.2d 161, at 162, these are: 'First, we may not indulge in any presumption that the new trial was granted on discretionary grounds. Second, we presume that the new trial was granted erroneously. Third, the burden is on the plaintiff-respondent to demonstrate on the record that there was reversible error. Fourth, in meeting that burden the plaintiff-respondent is confined to the errors specified in both its motion for a new trial and its brief. Civil Rules 83.06(b) and (c) (now Rule 84.05(b) and (c), V.A.M.R.); McCormack v. St. Louis Public Service Co., Mo., 337 S.W.2d 918(2); Myers v. Moffett, Mo., 312 S.W.2d 59(3); Drake v. Hicks, Mo., 261 S.W.2d 45(1--3); Gayer v. J. C. Penney Co., Mo.App., 326 S.W.2d 413(1).'

Defendant seeks to escape the impact of these principles by referring to statements and comments of the trial judge at the time her motion for new trial was sustained. She says in her brief: 'Appellant's contention that the Court failed to state its reasons is utterly without support on the record. The court . . . set its previous order aside stating: '. . . I want the record to show that the Motion for New Trial is being sustained more out of practice of the court than the evidence here . . . I think that these parties were somewhat confused, perhaps particularly Mrs. Curtis. I recall her testifying; she was distraught . . . (T)he Court intends to announce from the...