Glick v. Glick

• Decision Date: 11 November 1963
• Docket Number: No. 2,No. 49852,49852,2
• Citation: 372 S.W.2d 912
• Parties: Stanley N. GLICK, Respondent, v. Judith GLICK, Appellant
• Court: Missouri Supreme Court

Page 912

372 S.W.2d 912

Stanley N. GLICK, Respondent, v. Judith GLICK, Appellant.

No. 49852.

Supreme Court of Missouri, Division No. 2.

Nov. 11, 1963.

Motion for Rehearing or to Transfer to Court En Banc Denied

Dec. 9, 1963.

Moss H. Silverforb, Kansas City, and Robert A. McIlrath, Flat River, for appellant.

Roberts & Roberts, by J. Richard Roberts, Farmington, for respondent.

BARRETT, Commissioner.

This is an appeal from an order dismissing a motion to vacate a judgment (RSMo 1959, Sec. 511.250, V.A.M.S., Sup.Ct. Rule 74.32, V.A.M.R.) and is a continuation of the divorce litigation between Stanley N. and Judith Glick. Glick v. Glick, (Mo.App.) 336 S.W.2d 528; Glick v. Glick, (Mo.App.) 360 S.W.2d 333. As gathered from a transcript 'approved as to accuracy' by counsel for the parties, the facts in so far as necessary to a disposition of this appeal are these: In July 1958, Stanley N. Glick instituted an action for divorce, alleging general indignities. His wife Judith filed what she denominated a 'Cross-Petition for Separate Maintenance' which was in effect a general denial of the plaintiff's petition, a cross bill for divorce (RSMo 1959, Sec. 452.020) including a prayer for custody and child support of a minor child Corwin Dennis Glick, age 4, and in this language a prayer for what she now denominates 'separate maintenance,' 'and that said plaintiff be ordered to pay defendant such reasonable sum each month as alimony and for her support and maintenance as will enable her to live according to the standard of living heretofore set for defendant by the plaintiff, and for an equitable division of funds and property between defendant and plaintiff.' Other than the petition, cross-petition, decree and a motion the proceedings in the divorce action are not set forth in the transcript. But it appears from the decree dated either May 17 or June 14, 1961, that the plaintiff husband was found to be the innocent and injured party and was therefore awarded a divorce. The defendant wife was awarded custody of Corwin Dennis and it was decreed that plaintiff pay monthly child support of $175. On June 26, 1961, the defendant wife filed a 'Motion to Set Aside Decree of Divorce Granted to Plaintiff and to Render a Decree of Separate Maintenance for the Defendant under The Evidence or, Alternatively, For a New Trial.' In this motion the gist of Mrs. Glick's complaint was that the trial court had failed and refused to rule on or mention in its divorce decree her 'Cross-Petition for Separate Maintenance' and it was asserted 'as a result thereby the decree on its face is void.' This motion was overruled and, evidently, the defendant appealed to the St. Louis Court of Appeals because the next matter appearing in this transcript is a copy of that court's opinion and mandate in September 1962, 360 S.W.2d 333, dismissing Mrs. Glick's appeal because her brief did not meet the requirements of rules 83.05 and 83.09.

Thereafter, according to this transcript, on October 18, 1962, Mrs. Glick filed, purportedly under Sec. 511.250 or rule 74.32, a motion to vacate and set aside the 1961 divorce decree. In that motion she set out the decree, alleged in detail the facts of her motion in June 1961 to set the decree aside, particularly because of the court's failure to dispose of her cross-petition for separate maintenance, and, as far as material here alleged that the original divorce decree was irregular and void. Specifically, 'That by reason of said void judgment entered, defendant has been deprived of her civil and constitutional rights so granted to her, under the due process clause of Amendment 14, Section 1, Constitution of the United States of America, and Article 5, Section 10 of the Constitution of the State of Missouri, V.A.M.S., and that defendant is now being threatened with being deprived of her rights by this void judgment.' Included in the transcript are fifteen typewritten pages purportedly relating to the hearing of defendant's motion. As a matter of fact these pages consist entirely of a colloquy between the court, counsel for plaintiff and counsel for defendant. In any event, the court entered an order overruling the motion to vacate the judgment and Mrs. Glick has appealed from that order.

In this court it is again asserted that the 1961 divorce decree to her husband failed to dispose of all the issues, her cross-petition for separate maintenance, and was therefore 'void on its face' and, being void has deprived her of due process under the state and federal constitutions.

Upon this record and recitation of facts the obviously doubtful problem is whether, conclusions aside, it affirmatively appears that the appeal involves a substantial question concerning 'the construction' (Const.Mo.1959, Art. 5, Sec. 3) of the state or federal constitution for the purposes of this court's appellate jurisdiction. Vogel v. Vogel (Mo.App.) 333 S.W.2d 306; Swenson v. Swenson, (Mo.) 299 S.W.2d 523; Baker v. Baker, (Mo.App.) 274 S.W.2d 322, all cases dealing with some phase of divorce. As a matter of fact, the resolution of this vexatious problem necessarily results in a disposition of the appeal on its merits. 'The effect of this pleading is to aver that the judgment (also in divorce) of the Iowa court upon service by publication was void, because violative of the constitutional provisions, both state and federal, therein specifically named. Whether there is merit in the question raised is for us to determine, but, being timely raised it is sufficient to give us jurisdiction.' Hanks v. Hanks, 218 Mo. 670, 673-674, 117 S.W. 1101, 1102.

A judgment to be 'final' (RSMo 1959, Sec. 511.020) and therefore appealable must of course dispose of all issues. Green v. Green, (Mo.App.) 240 S.W.2d 741. But as illustrated by the Green case, the penalty of appealing a judgment that is not final in that it does not dispose of all issues--as in granting a divorce but failing to dispose of the custody of minor...