Dodds v. Dodds
| Decision Date | 02 November 1959 |
| Docket Number | No. 22979,22979 |
| Parties | Charles E. DODDS, Respondent, v. Wilma Ruth DODDS, Appellant. |
| Court | Missouri Court of Appeals |
Jerome B. Stone, Goodman, Stone & Taxman, Kansas City, for appellant.
Clyde G. Meise, Albert Kiesow, Kansas City, for respondent.
This is an appeal from the judgment of the trial court overruling appellant Wilma Ruth Dodd's motion to set aside a modification order reducing alimony. Appellant urges the trial court erred in its modification order in that (1) it was made without the benefit of hearing any evidence and (2) without lawful notice to appellant that a motion to modify had been filed and was to be taken up by the court.
In March, 1948, in Division 6 of the Circuit Court of Jackson County, appellant was granted a divorce from respondent and $150 per month alimony. On September 6, 1956, respondent filed his motion to modify the decree by reducing the alimony allowance to $50 per month. According to the transcript proof of service of the motion and notice that it was to be taken up on September 28, 1956, consists of the following:
1. A post office department registered mail return receipt dated September 10, 1956, certified No. 6771808, Name of sender, Dennis B. Sheehy, showing: 'Received from the postmaster the registered, certified, or insured article, the number of which appears on the face of this receipt.
'(Signed): Wilma Dodds by J. Burns,
'Date of Delivery: 9/11/56.'
2. The mentioned motion to modify and notice upon which there appeared the following notation:
On September 28, 1956, in accordance with the mentioned notice, the motion for reduction of alimony was taken up by the court. Respondent appeared in person and with his attorney. Appellant, who lived in Chicago, Illinois, did not appear in person or by attorney.
Apparently no testimony or evidence was taken at the 'hearing' for no witnesses were sworn and no one testified. The court reporter could not find any notes concerning the hearing. The trial judge had no independent recollection of the hearing. The respondent conceded that although he was present he was not sworn and did not testify. Nor did he see any one testify. He did see his attorney talk with the judge. No one else was present who knew anything about the case. The court's order making the modification read in part: 'Plaintiff's motion for reduction of alimony is by the court taken up, heard and by the court sustained.'
On November 5, 1958, appellant filed her motion to set aside the September 28, 1956 order reducing the alimony, which on November 21, 1958, was overruled. This appeal followed a timely but unsuccessful motion for new trial. 1
The circuit court in a divorce proceeding does not lose its jurisdiction by the entry of its original decree but retains a limited jurisdiction to modify that decree. Hayes v. Hayes, 363 Mo. 583, 252 S.W.2d 323. Section 452.070 RSMo 1949, V.A.M.S. reserves power in the trial court to make such alteration, from time to time, as to the allowance of alimony and maintenance, as may be proper.
Until the decree is modified in accordance with law it is a binding judgment and cannot be disturbed except upon a regular proceeding and hearing for that purpose. One requirement is that the party to be adversely affected be provided reasonable and proper notice of the motion for modification and the time it is to be called up for hearing. While the motion to modify is treated as in the nature of a petition in an original action, summons in the usual form need not be issued and served, the requirement being, as stated, that reasonable and proper notice be provided. Burgess v. Burgess, 239 Mo.App. 390, 190 S.W.2d 282; Fernbaugh v. Clark, 236 Mo.App. 1200, 163 S.W.2d 999.
Thus, as to nonresidents, where jurisdiction over the parties has been obtained and a divorce and alimony granted and one of them later applies for a modification of the alimony provisions of the judgment the court's power to modify the award may be exercised upon reasonable and proper notice, other than personal service within the court's jurisdiction, even though the person to be notified is a nonresident at that time. See Annotation, Alimony-Modification-Notice, 62 A.L.R.2d 544, ff.
In 1945 our Supreme Court, as a supplement to Sec. 5, 1943 Act, Civil Code [Section 506.100 RSMo 1949, V.A.M.S.], in its rule 3.03(b), 42 V.A.M.S., provided: ...
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Williamson v. Williamson
...of a motion upon a non-resident may be made by registered mail, 'and such service may be shown by affidavit.' In the case of Dodds v. Dodds, Mo.App., 328 S.W.2d 724, handed down while this opinion was being prepared, the Kansas City Court of Appeals held that the filing of the registered re......
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Lipschitz, In re
...v. Hayes, 363 Mo. 583, 252 S.W.2d 323, 328(8, 9, 10); Williamson v. Williamson, Mo.App., 331 S.W.2d 140, 142(2); Dodds v. Dodds, Mo.App., 328 S.W.2d 724, 726(3), 727(6). A movant has the burden of proving proper service of the motion to the adverse party. And proper notice in a custody proc......
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State ex rel. Perrella v. McGuire, 15575
...710 S.W.2d 501, 503 (Mo.App.1986). A petition for modification of a custody decree must state "the necessary facts," Dodds v. Dodds, 328 S.W.2d 724, 727 (Mo.App.1959), that is it "must state a claim upon which relief may be granted or it is insufficient." Hayes v. Hayes, 252 S.W.2d 323, 328......
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Greene v. Greene
...239 Mo.App. 390, 395, 190 S.W.2d 282, 284. The burden was upon the respondent Walter Greene to 'prove proper notice' Dodds v. Dodds (Mo.App.), 328 S.W.2d 724 before there could be a valid modification of the original divorce decree. The fact of proper notice to Charlene was not established ......