Dickey v. Dickey

• Decision Date: 07 November 1939
• Docket Number: No. 25119.,25119.
• Citation: 132 S.W.2d 1026
• Court: Missouri Court of Appeals
• Parties: DICKEY v. DICKEY.

132 S.W.2d 1026

DICKEY v. DICKEY.

No. 25119.

St. Louis Court of Appeals. Missouri.

November 7, 1939.

Appeal from Circuit Court, Franklin County; R. A. Breuer, Judge.

"Not to be reported in State Reports."

Action by Fred B. Dickey against Effie Dickey for divorce, wherein the defendant filed cross-bill. Upon filing of the cross-bill, plaintiff dismissed his petition. Decree was entered for the defendant on the cross-bill. From an order and judgment denying defendant's motion to revoke and set aside a prior modification of the divorce decree, purportedly releasing and discharging the plaintiff from liability for further payments of alimony to the defendant, and to modify original decree on ground of a changed condition in the parties so as to increase monthly payments of alimony required thereby, the defendant appeals.

Reversed and cause remanded for further proceedings on motion in accordance with opinion.

Theodore P. Hukriede, of Union, and Roscoe C. Patterson, of Springfield, for appellant.

James Booth and James L. Anding, both of Pacific, for respondent.

BENNICK, Commissioner.

This is an appeal by the divorced wife from the order and judgment of the Circuit Court of Franklin County denying her motion by which she asked that the court not only revoke and set aside a previous modification of its decree of divorce purportedly releasing and discharging her former husband from liability for further payments of alimony to her, but that it in turn modify the original decree upon the ground of a changed condition of the parties so as to increase the monthly payments of alimony required thereby.

The original action was instituted by Fred B. Dickey, the husband by the filing of a petition alleging indignities on the part of his wife, Effie Dickey, and praying that he be divorced from the bonds of matrimony theretofore contracted with her.

The latter thereupon filed her answer and cross bill in the case, specifically denying, by way of answer, the indignities charged against her in plaintiff's petition, and then by way of cross complaint setting up certain alleged conduct on plaintiff's part over a long period of years which had greatly embarrassed, humiliated, and aggrieved her, and had rendered her condition in life intolerable. The prayer of her cross bill was "for a decree of divorce on defendant's cross-bill and for the custody of the minor child, Maud E. Dickey, and for suitable alimony and support for the said child".

It appears, incidentally, that of the three children born of the marriage between plaintiff and defendant, all of them had attained their majority by the time of the institution of the action save for a daughter, Maud E. Dickey, the child referred to in the prayer of defendant's cross bill, who was then sixteen years of age, or was so alleged to be in the petition filed by plaintiff

Upon the filing of defendant's cross bill, plaintiff dismissed his petition; and, at the November, 1932, term, after a hearing upon the merits of defendant's cross bill, the court entered a decree for defendant based upon a finding that the allegations in her cross bill were true and that she was the innocent and injured party and entitled to the relief prayed for therein. A divorce was thereupon awarded defendant, after which the court, in the concluding portion of its decree, proceeded to make the following provisions with respect to defendant's prayer "for the custody of the minor child, Maud E. Dickey, and for suitable alimony" and the like:

"It is further ordered and adjudged that defendant have the care and custody of Maud E. Dickey, a minor child born of the marriage, that by way of alimony, plaintiff shall pay to her the sum of $35.00 per month, the first payment to be made on the fifteenth day of December, 1932, and like sum on like date in each month thereafter; also the sum of $50.00 attorney fees, together with the costs incident to and growing out of this suit and that execution issue therefor."

It should perhaps be stated at this juncture in the case that the appeal now before us grows out of a controversy that eventually developed between the parties over the question of whether the provision of the above decree obligating plaintiff to make monthly payments "by way of alimony" is to be construed as a provision for the payment of alimony to the divorced wife, Effie Dickey, or as a provision for the maintenance and support of the minor child, Maud E. Dickey. Plaintiff now claims the latter, contending that the question of the property rights of defendant had been settled out of court, and that the provision in the decree for payments "by way of alimony" was therefore intended solely as a provision for the support of the minor child whose custody was awarded to defendant. As opposed to this, defendant takes the position that inasmuch as she prayed in her cross bill no less for "suitable alimony" as an incident to her divorce decree than for "support for the said child" as an incident to an award of the child's custody, the provision of the decree obligating plaintiff to make payments to her "by way of alimony" is only to be construed as a provision for the payment of alimony to her as the divorced wife who had been expressly found to be the innocent and injured party, and is in no sense to be taken as a provision for the support and maintenance of the minor child whose custody was awarded to her.

While plaintiff argues most earnestly in behalf of his contention that the particular provision in the decree of divorce was intended solely as a provision for the support of the minor child, Maud E. Dickey, and not as a provision for the payment of alimony to defendant, the divorced wife, it would nevertheless appear that such an interpretation of the decree came as an afterthought on plaintiff's part, since following the entry of the decree in November, 1932, he began paying the required monthly payments to defendant, and continued so to do without protest until in August, 1936, when, after he had been meanwhile twice remarried, he employed his present counsel and caused a motion to be filed asking the court to review and modify the decree with respect to its provision for the payment of alimony.

In said motion (which was founded upon information supplied counsel by plaintiff himself and was sworn to by him), he first called the court's attention to the decree of divorce theretofore obtained by defendant, with its provision that "by way of alimony" he should thereafter pay her the sum of $35 a month. Following this, he stated to the court that he had duly paid all sums of money adjudged against him as "alimony", and then, as the ground or basis for his motion, alleged that defendant, his divorced wife, was a normal, healthy, and able-bodied woman of the age of forty-six years; that she was making her home in Springfield, Missouri, in rented property; that she was the owner of real estate in Walnut Grove, Missouri, of the value of $3,500; that since the rendition of the divorce decree, the minor child, Maud E. Dickey (who resided with her mother), had been engaged in a gainful occupation at which she received a salary of $60 a month; that since the rendition of the decree, defendant herself had been engaged in keeping roomers and boarders and in renting out her Walnut Grove property; that defendant's total income was approximately $80 a month; and that at the time of the rendition of the decree neither defendant nor the minor child had been engaged in or following any gainful occupation.

Concluding his motion with the allegation that said "alimony", under the then existing circumstances, was exorbitant, unjust, and unreasonable "for the proper support, either of said defendant or of said minor child", plaintiff prayed the court to modify and change said judgment for "alimony" so that he would only be required to pay such monthly sums of "alimony", if any, as from the circumstances and nature of the case would be reasonable and just.

Notice was duly served upon defendant of plaintiff's intention to file said motion, whereupon defendant employed local counsel at her home in Springfield, Missouri, who forthwith advised both the court and plaintiff's counsel of his purpose to appear and resist the motion in defendant's behalf. The motion was thereafter filed in court and set down for a hearing on a definite date at the August, 1936, term, but before said date the motion was withdrawn by plaintiff, and the proceeding to modify the decree abandoned.

Defendant assumes that said motion was withdrawn by plaintiff before the time fixed for a hearing upon it because of the disclosure of her intention, not only to appear and resist the motion, but also to file a countermotion asking that the decree be modified by increasing the monthly payments of alimony. Plaintiff's counsel, on the other hand, offers the explanation that he found that he could not sustain the allegations of the motion without putting his client to great trouble and expense in securing competent evidence from in and around Springfield, Missouri, where defendant was residing; and that furthermore, having meanwhile concluded that the particular provision of the decree was solely one for the support of the minor child and not for alimony for defendant, he had advised plaintiff to withdraw his motion and await the time when the minor child should attain her majority, when a motion to modify the decree might be successfully maintained upon that ground alone.

While the motives which actually prompted plaintiff and his counsel to withdraw the motion are of no particular consequence as regards the legal points involved on this appeal, it is nevertheless a significant fact that the motion was not founded upon the idea that the payments required "by way of alimony" were intended to be solely for the benefit of the minor child, Maud E. Dickey, but instead upon the theory of a change for the better in the financial condition of defendant, the...