Davis v. Gould

• Decision Date: 10 August 1939
• Citation: 131 S.W.2d 360,234 Mo.App. 42
• Parties: ESMAL DAVIS, RESPONDENT, v. ALVA GOULD, APPELLANT
• Court: Missouri Court of Appeals

131 S.W.2d 360

234 Mo.App. 42

ESMAL DAVIS, RESPONDENT, v. ALVA GOULD, APPELLANT

Court of Appeals of Missouri, Springfield

August 10, 1939

Appeal from the Circuit Court of Pemiscot County.--Hon. Louis H Schult, Judge.

Cause reversed and remanded.

Fred L Henley and Von Mayes for appellant.

Ward & Reeves for respondent.

FULBRIGHT J. Allen, P. J., absent; Smith, J., concurs.

OPINION

FULBRIGHT, J.

This is an appeal from a judgment entered in the Circuit Court of Pemiscot County in which plaintiff recovered from defendant for past maintenance furnished by her to their minor child.

The petition is as follows:

"Plaintiff states she and the defendant were married in the State of Missouri on or about March 7, 1919, and that she obtained a decree of divorce from the defendant on December 7, 1922, in the Circuit Court of Pemiscot County, Missouri, which decree of divorce is recorded in Circuit Court Record Book No. 25, Page 242, of said County; that by said marriage of the plaintiff and the defendant they had one girl child named Margarite Genevieve Gould, who was at the time of the said divorce decree of the age of two years, and that by said decree the plaintiff was awarded the custody of said minor child; that it thereby became and was the duty of the defendant to maintain, support and educate said minor child from and after the said December 7, 1922, or to reimburse plaintiff for same, but that the defendant has ever failed and refused to support, maintain or educate said minor from and after the said December 7, 1922, or to contribute any money or means for the support of said child, or to reimburse plaintiff for same, and that this plaintiff has supported, maintained and schooled said child at a reasonable, necessary and proper cost, expense and outlay of funds, means and necessities for said child the sum of $ 7.00 per month from and after the said December 7, 1922, up to December 7, 1932, and that the plaintiff has during all of said period of time and up to May 27, 1937, had the custody of said child, and has supported and maintained said child during all said time; that plaintiff has supported, maintained and schooled said child at a reasonable, necessary and proper cost, expense and outlay of funds, means and necessities for said child, the sum of $ 15 per month from and after said December 7, 1932, up to May 27, 1937; that the total sum thus paid out and expended by plaintiff in and about the support, maintenance and education of said child from the said December 7, 1922, up to the time of the filing of this suit, is therefore the sum of $ 1710, which has become due and payable to the plaintiff by the defendant to reimburse her as aforesaid.

"Plaintiff further states that for the support, maintenance and education of said minor child so paid out and expended therefor by this plaintiff, the same constitutes a continuous and running account, and was continuous and uninterrupted from the said December 7, 1922, up to the time of the filing of this suit.

"Wherefore, plaintiff prays judgment against the defendant for the amount due the plaintiff as aforesaid in the total sum of $ 1710, and for her costs in this behalf expended."

Defendant's answer admitted the marriage, parentage of the child and the decree of divorce, but denied all other allegations of the petition and specifically pleaded that the divorce decree as to the support of the child is barred by the ten-year Statute of Limitations; that any support furnished said child by plaintiff five years prior to the filing of said petition is barred by the five-year Statute of Limitations; and that by reason of laches and conduct of plaintiff she is estopped from claiming any right to recover for support of the child at any time.

The record discloses that on December 7, 1922, plaintiff and defendant were husband and wife and the parents of a two-year-old daughter, and on that date the mother obtained a decree of divorce in the Circuit Court of Pemiscot County. It appears that the mother was awarded the custody of the child and a monthly allowance for her maintenance. Since the divorce decree was granted, the mother has had the custody of the child continuously and has supported and maintained her until her marriage May 27, 1937. It further appears that the mother remarried and moved to Illinois taking the daughter with her. For about two years during the period from October 7, 1932, until May 27, 1937, the mother boarded her daughter at the cost of $ 5 per week. The remainder of the time the daughter remained in the home of her mother and was fed, clothed and schooled by her at a cost of $ 25 per month. The defendant never at any time paid anything toward the support of his daughter although at different times he was requested to do so. No payment was ever made upon the judgment for maintenance granted the mother in the divorce suit, and the judgment was not revived.

The case was submitted to the jury on the above evidence and the following instruction:

"The court instructs the jury that it is admitted in this case by the pleadings and evidence that the plaintiff and defendant were husband and wife, and that they were divorced on or about December 7, 1922, and that Margaret Genevieve Gould was their minor child at the time of said divorce. The court instructs the jury that if they find and believe from the evidence that from and after October 7, 1932, until the marriage of the said Margaret Genevieve Gould, on May 27, 1937, the plaintiff had the custody of said minor child and supported and maintained said child or furnished any support and maintenance for said child during said period of time, then if you so find the facts, your verdict should be for the plaintiff and against the defendant for the reasonable value of the necessary expense and outlay of funds, means and necessities so furnished by the plaintiff for the maintenance and support of said child."

The jury returned a verdict for the plaintiff in the sum of $ 835, and a remittitur of $ 16 was offered and allowed.

It is pleaded as a defense in this case that the divorce decree as to the support of the child was barred by the...