Glass v. Glass

• Decision Date: 16 June 1931
• Citation: 39 S.W.2d 816,226 Mo.App. 78
• Parties: MARJORIE GLASS, APPELLANT, v. SPAULDING F. GLASS, RESPONDENT
• Court: Missouri Court of Appeals

39 S.W.2d 816

226 Mo.App. 78

MARJORIE GLASS, APPELLANT, v. SPAULDING F. GLASS, RESPONDENT

Court of Appeals of Missouri, St. Louis

June 16, 1931

Appeal from the Circuit Court of the city of St. Louis.--Hon. John T. Fitzsimmons, Judge.

REVERSED AND REMANDED.

Reversed and remanded.

Harry A. Frank for appellant.

(1) The circuit court has jurisdiction and power to make an allowance for suit money, including attorney's fees, pending an appeal of an application for modification in the divorce decree relating to the custody or the amount of monthly payment for the maintenance of said minor child; the motion for modification even though filed at a term subsequent to the decree of divorce, was a continuation of the original action for divorce, the court retaining jurisdiction of the case until the child reached her majority. Guymon v Guymon, 211 Mo.App. 694, 245 S.W. 617; Kaplun v Kaplun, 227 S.W. 894. (2) The circuit court alone has exclusive jurisdiction to hear and determine a motion for suit money, including attorney's fees, pending an appeal of a motion to modify the divorce decree, though said motion for suit money was filed in said circuit court after an appeal had been taken, and at a term of court subsequent to that at which the appeal of the motion to modify was allowed and granted. The right of the circuit court, in proceedings for divorce or the modification of divorce decrees, to entertain and determine allowances for counsel fees pending the appeal inheres in said circuit court even after the court term at which the appeal was granted, and continues as long as the appeal is pending in the appellate court, and until the end of the litigation. State ex rel. Kranke v Calhoun, 206 Mo.App. 298, 27 S.W. 1080, opinion affirmed in the Supreme Court en banc, 232 S.W. 1038; Welday v. Welday, 232 S.W. 1045; Weisheyer v. Weisheyer, 14 S.W.2d 486, affirmed on certiorari in the Supreme Court, State ex rel. Weisheyer v. Haid, 26 S.W.2d 939; Sayler v. Sayler, 212 Mo.App. 583, 252 S.W. 467; Nolker v. Nolker, 257 S.W. 798; Howey v. Howey, 220 Mo.App. 484, 276 S.W. 84; McBride v. McBride, 119 N.Y. 519; Bauman v. Bauman, 209 A.D. 238; Cirtin v. Cirtin, 87 Ind.App. 457, 161 N.E. 709; Lewis v. Lewis, 83 Wash. 671, 145 P. 980; Ex parte Bernard Lohmuller, 103 Texas 474, 129 S.W. 834; Morgan v. Morgan, 133 A. 249; Rohrback v. Rohrback (1892), 75 Md. 318; Craig v. Craig, 115 Va. 764, 80 S.E. 507.

Allen, Moser & Marsalek for respondent.

(1) The court properly overruled appellant's motion for suit money and attorney's fees. Respondent's motion to modify the decree having been heard, ruled upon and an appeal from the ruling perfected during the February term of court, the court could not, at the April term, entertain the appellant's motion for an allowance of suit money and attorney's fees in connection with said proceeding. State ex rel. v. Calhoun et al., 206 Mo.App. 298, l. c. 311, affirmed 232 S.W. 1038; Salyer v. Salyer, 212 Mo.App. 583; Cantwell v. Johnson, 236 Mo. 575. (2) The court's action in overruling appellant's motion for suit money and attorney's fees cannot be reviewed on appeal, no motion for a new trial having been filed below. The motion for suit money and attorney's fees, although an adjunct of the proceeding to modify the decree, is nevertheless an independent proceeding, arising out of the relation of the parties and is to be considered and determined upon its own merits, independent of the merits of the proceeding to modify. State ex rel. v. Calhound, 206 Mo.App. 298, affirmed 232 S.W. 1038; State ex rel. Gercke v. Seddon, 93 Mo. 520; Pickel v. Pickle, 176 Mo.App. 673, 674; Donaldson v. Donaldson (Mo. App.), 215 S.W. 904. Such being the case, the court's action on the application for suit money and attorney's fees, cannot be reviewed in the absence of a timely motion asking that the ruling be set aside and a new trial granted. Secs. 947, 974, 1005, 1061, R. S. 1929; Steele v. Steele, 85 Mo.App. 224; Smith v. Smith, 192 Mo.App. 99; Vordick v. Vordick, 205 Mo.App. 555; Hemm v. Juede, 153 Mo.App. 259; Marshall v. Brown, 145 Mo.App. 426; Rudd v. Rudd (Mo. App.), 13 S.W.2d 1082; Erskine v. Loewenstein, 82 Mo. 301; Joplin & W. Ry. Co. v. K. C. F. S. & M. R. Co., 135 Mo. 549.

SUTTON, C. Haid, P. J., and Becker and Nipper, JJ., concur.

OPINION

SUTTON, C.

This action grows out of a divorce proceeding. On June 25, 1928, the circuit court of the City of St. Louis entered a decree granting plaintiff a divorce from the defendant, and awarding her the custody of their minor child, Patricia Glass. On January 25, 1929, the court modified this decree. The decree, as modified, required defendant to pay plaintiff $ 80 per month for the support of the minor child. On January 27, 1930, defendant filed a motion to further modify the decree so as to reduce the amount defendant was required to pay for the support of the child. On February 8, 1930, during the February term of court, defendant's motion to further modify the decree was overruled by the court, and from the order overruling the motion, defendant, on April 5th, the last day of the February term, appealed to this court.

On April 15, 1930, during the April term of court, plaintiff filed her motion for the allowance of suit money and attorneys' fees, pending said appeal, after having given due notice to defendant of the filing of the motion. Upon the hearing of this motion, at said April term of court, plaintiff introduced in evidence defendant's motion to further modify the divorce decree, the order overruling said motion, and the order granting defendant an appeal from the order overruling said motion. Thereupon, the defendant objected to the introduction of any further evidence, on the ground that plaintiff's motion for alimony and suit money pending said appeal, was filed at a term subsequent to that at which the appeal was granted, and that the court was, therefore, without jurisdiction to entertain plaintiff's said motion for alimony and suit money pending said appeal. The court sustained this objection and overruled plaintiff's motion. From the order of the court overruling plaintiff's motion, plaintiff has appealed to this court.

Plaintiff's motion shows that the defendant's motion to further modify the divorce decree, was filed and overruled, and defendant's appeal taken, at the February term, 1930. The order overruling plaintiff's motion shows that it was overruled for the reason that the court was without jurisdiction to entertain the motion because it was filed at a term of court subsequent to that at which the appeal was allowed.

To uphold the ruling of the court below, defendant relies on State ex rel. Kranke v. Calhoun, 206 Mo.App. 298, 227 S.W. 1080. That case was transferred to the Supreme Court as being in conflict with an opinion of the Kansas City Court of Appeals, and the opinion of this court, which was written by Judge BECKER, was adopted as the opinion of the Supreme Court.

Defendant calls particular attention to the following language of the opinion as supporting his view, to-wit:

"In light of what we have said herein we are of the opinion and so hold that the circuit court, in this action for divorce, has jurisdiction to hear and determine plaintiff's motion for alimony pendente lite and suit money pending appeal though said motion was filed by plaintiff in the said trial court after an appeal had been taken by the defendant in the cause, from the judgment granting plaintiff a divorce, but during the same term at which the appeal had been allowed."

The purpose of this language obviously was merely to state the law as applicable to the particular facts of the case. The opinion clearly holds that the circuit court has jurisdiction to hear and determine a motion for alimony and suit money pending an appeal, though the motion is filed after the appeal is taken, but during the same term. It is equally clear that the opinion does not hold that the circuit court is without jurisdiction to hear and determine such a motion at a term subsequent to the term at which the appeal is granted. On the contrary, the reasoning of the opinion which led this court to the conclusion that the circuit court has jurisdiction to hear and determine such a motion during the term at which the appeal is granted, also leads inevitably to the conclusion that such court has jurisdiction to hear and determine such a motion at a subsequent term. This appears both from the language of the learned judge who wrote the opinion, and the quotations made, with evident approval, from the courts of other jurisdictions.

The opinion states the underlying principle, determinative of the question involved, as follows:

"Section 2375, Revised Statutes 1909, relating to alimony and maintenance, among other things provides:

"' . . the court may decree alimony pending the suit for divorce in all cases where the same would be just, whether the wife be plaintiff or defendant, and enforce such order in the same manner provided by law in other cases.'

"The fundamental object as we interpret the language of Section 2375, Revised Statutes 1909, is to provide the wife at all times while the suit for divorce is pending, a forum in which she may make her application for alimony and suit money, and have the same determined upon hearing upon its merits, thus assuring the wife, where need and the circumstances require, the necessary funds with which to conduct her case, whether she be plaintiff or defendant, appellant or respondent. In other words the Legislature evidently intends that the wife should at all times, so long as a suit for divorce is pending be assured of an opportunity to prosecute or defend her case until final judgment in the matter is entered.

"It has long since been...