Eaton v. Eaton

• Decision Date: 20 February 1922
• Docket Number: No. 14281.,14281.
• Parties: EATON v. EATON.
• Court: Missouri Court of Appeals

237 S.W. 896

EATON v. EATON.

No. 14281.

Kansas City Court of Appeals. Missouri.

February 20, 1922.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

"Not to be officially published."

Suit for divorce by Pearl M. Eaton against William Paul Eaton. Decree for plaintiff, and from an order modifying the decree, she appeals. Affirmed.

Scarritt, Jones, Seddon & North, of Kansas City, for appellant.

Hagerman & Jost, Frank Hagerman, and Henry L. Jost, all of Kansas City, for respondent.

TRIMBLE, P. J.

Plaintiff appeals from an order modifying a decree of divorce granted her December 14, 1918, wherein she was awarded the custody of the two children, a girl 15 and a boy 7, and also alimony at the rate of $466.66 per month for one year up to and including December, 1919, and continuing thereafter at the rate of $416.66 per month during the life of plaintiff, such payments being "intended to provide for the support of the plaintiff and the maintenance and education of the said children."

The motion to Whereupon the court modified the decree by providing:

The "monthly payment of alimony and maintenance beginning May 5, 1921, to be $300 instead of the amount provided for in said decree until the further order of the court. Defendant shall have the privilege of visiting his children at reasonable times and places. Said motion is by the court overruled in all other respects."

The original decree said nothing about the father visiting his children.

The appellant asserts that there is neither allegation in the motion nor proof in support of it to justify any modification of the decree. It is no doubt well settled that an unappealed decree of divorce, though remaining open for variation in certain particulars, as the changed circumstances of the parties may require, is a final decree which cannot be changed as to alimony and custody of children except upon new facts occurring after the trial which will justify such change. Phipps v. Phipps, 168 Mo. App. 697, 154 S. W. 825; Cole v. Cole, a Mo. App. 228; Deidesheimer v. Deidesheimer, 74 Mo. App. 234; 19 C. J. 350. But, when those changed circumstances exist, there can be no doubt of the court's power, upon a proper hearing, to make such alterations. Section 1806, R. S. 1919, gives the court, at the time the divorce is adjudged, power to make "such order touching the alimony and maintenance of the wife, and the care, custody and maintenance of the children, or any of them, as, from the circumstances of the parties and the nature of the case, shall be reasonable." And the court, "on the application of either party, may make such alteration, from time to time, as to the allowance of alimony and maintenance, as may be proper," etc. Thus it will be seen that the statute contemplates that not only the original alimony, but also the subsequent modification thereof, is to be fixed at such sum as "shall be reasonable," ascertained in the light of the circumstances of the parties and the nature of the case.

The motion to modify does, we think, contain sufficient allegations to support the modification. The allegation that at the time of the divorce defendant was "mentally distracted" because of the dissolution of his home, and that, while "protesting to the last," he made no vigorous defense to either the decree or to the amount of alimony allowed, which was "in excess of his ability to pay" (because he thought by such antagonism he would destroy his much hoped-for chances of reconciliation, which the record herein clearly shows he earnestly desired), manifestly cannot be used as a basis of an assault or attack upon the decree. Nor can it be relied upon as a ground, in and of itself, to modify or reduce the amount of alimony, but, with the proof in support thereof, it does permit the court to sea the circumstances and perhaps understand why it was that no opposition was then made to what is now sought to be changed. Again, in view of the fact that the court acted favorably on the motion in reduction of alimony, it may be regarded as impliedly alleging that necessarily the amount allowed is now in excess of his reasonable ability to pay.

But, in addition to this, the motion alleges that immediately after the divorce plaintiff moved with the children to Long Beach, Cal., thus totally depriving defendant of any opportunity to see his children or to enjoy their society and companionship. The motion also alleges that plaintiff's mode of life thereafter was extravagant and such as not to justify the imposition of the cost or any part thereof upon the defendant "especially in the straitened and embarrassed financial condition of the defendant," and that such extravagant manner and mode of life is "not conducive to the best interests of said children, or either of them, and is not such as is calculated to inculcate said children and each of them with sound, wholesome, and proper ideas and a proper understanding of their obligations, duties, and responsibilities in life."

We do not deem it necessary to go into any detailed statement of the history of the couple prior to the divorce. Suffice it to say that at the time they were married, twenty years ago, she was a member of an important, wealthy, well-known Kansas family living at Wichita, and he was E. clerk in a cigar store on a salary of $60 per month, but without property or other income. Shortly after his marriage he acquired a cigar store, and later still another by borrowing $7,500 from his mother, which he still owes. Still later, about 5 years prior to the divorce, he came to Kansas City and entered the employ of a large tobacco company at a salary of $3,000 a year, which was gradually increased to $7,500.

The record does not disclose the details of their marital history during the 6 years they lived in Kansas City. It does appear that plaintiff filed her petition, defendant entered his appearance and filed a general denial, all of which occurred or one day, and the next day a decree of divorce was entered. Defendant was not present in court, but was represented by counsel when the decree was granted. It appears in the record of the hearing on this motion, from even the witnesses on plaintiff's side, that at the time of the divorce defendant was "upset"; was in hopes that his wife's estrangement would not last and that they would not be permanently separated; that he "protested" against a divorce, and was greatly depressed over the matter. From letters written by him to his wife at that time and later it appears that he loved his wife intensely, deplored the divorce, and in various places in the record it is shown that he earnestly sought a reunion. It appears also that he is a man of goad reputation.

The stenographer's transcript of the evidence taken at the divorce hearing shows that plaintiff testified she had a home in Kansas City where she could take care of the children. Although the decree says nothing about where the children were to, be kept nor of defendant's right or opportunity to see them, yet the stenographer's notes show that the trial court asked plaintiff if she understood that, if the children were left in her charge as before, the father would have a right to see them at reasonable and seasonable hours. To which she replied, "Sure." The court then said, "He has a right to know where they are?" to which plaintiff replied, "Yes, sir; that is all right." The trial court, at the hearing on the motion, excluded the evidence of this as being a mere colloquy between the divorce trial court and the plaintiff, which, not being an element of the decree, could have no bearing on what is to be done on the motion. Doubtless this is true in a sense, and yet it is a circumstance throwing a side light on the entire situation which is not without its effect in presenting a full picture of that which is before us.

The transcript of the evidence taken at the divorce trial does not disclose what was the cause of the wife's desire for a divorce further than the wife's statements, in the nature of conclusions, that "recently, very recently," his "attitude and conduct are just intolerable," and that he had been cruel "in his words, acts, and deeds"; that they continued up to the night before the separation, which `Lock place on the 1st of the month. The decree was entered on the 14th. We note these matters not as having any weight or effect whatever...