Goldstein v. Goldstein

• Decision Date: 02 November 1942
• Docket Number: No. 20217.,20217.
• Parties: SARAH E. GOLDSTEIN, RESPONDENT, v. BENJAMIN R. GOLDSTEIN, APPELLANT.
• Court: Missouri Court of Appeals

165 S.W.2d 876

SARAH E. GOLDSTEIN, RESPONDENT, v. BENJAMIN R. GOLDSTEIN, APPELLANT.

No. 20217.

Kansas City Court of Appeals, Missouri.

November 2, 1942.

Appeal from Adair Circuit Court. — Hon. Emert C. Hilbert, Judge.

AFFIRMED.

E.M. Jayne for respondent.

(1) There was no bill of exceptions in this case and consequently the original decree is not before this court and the only matter before this court is the motion and answer thereto, and the order entered thereon. North v. North, 100 S.W. (2d) 582, 588. (2) The court having awarded a decree of divorce, it, by that fact, obtained jurisdiction over the custody of the children of the parties until they attain their majority. Sec. 1519, R.S. Mo. 1939; Art. 3, Chap. 8, R.S. Mo. 1939; In re Krauthoff, 191 Mo. App. 149; In re Kohl, 82 Mo. App. 442; In re Morgan, 117 Mo. 249; Kelly v. Kelly, 329 Mo. 992, 47 S.W. (2d) 762. (3) The fact that a stipulation between the parties regarding the maintenance of the child was had in the divorce suit would not prevent the court from thereafter modifying the divorce decree with reference to the child. Auer v. Auer, 193 S.W. 926. (4) The jurisdiction of the court to order support of a minor child is retained even though the divorce decree is silent as regards the support of the child. Kaestner v. Kaestner, 58 S.W. (2d) 495; Auer v. Auer, 193 S.W. 926; Shannon v. Shannon, 97 Mo. App. 119.

M.D. Campbell and A.D. Campbell for appellant.

(1) The court erred in sustaining the motion to modify the decree of February 21, 1940. There is no allegation of change of condition showing new facts arising after the entry of the original decree. Salkey v. Salkey, 80 S.W. (2d) 735; Bittel v. Bittel, 147 S.W. (2d) 139; Schulte v. Schulte, 140 S.W. (2d) 49, 54. (2) The motion to modify is treated as a petition in an original action and its failure to state a cause of action is a jurisdictional defect. North v. North, 100 S.W. (2d) 582; LeRue v. LeRue, 249 S.W. 723, 726. (3) Each of the quoted allegations of the motion is the statement of a legal conclusion, not the statement of an issuable fact and may be attacked at any stage of the proceedings. Iven v. Winton Bros. Co., 48 S.W. (2d) 125, 126, and cases cited therein. (4) The decree of February 21, 1940, recites the parties had executed and filed a stipulation settling their property rights. The stipulation when approved by the court deprived the court of jurisdiction at a subsequent term to modify the decree respecting alimony. North v. North, supra. Plaintiff's remedy for failure of defendant, if any, to discharge the obligations of the stipulation is by independent action on the stipulation. Bishop v. Bishop, 162 S.W. (2d) 332, 334.

SHAIN, P.J.

This action involves the modification of a divorce decree. On January 17, 1942, Sarah E. Goldstein filed a motion in the Circuit Court of Adair County, Missouri, to modify a decree rendered in that court, on the 21st day of February, 1940, wherein said Sarah E. Goldstein was plaintiff and Benjamin R. Goldstein was defendant. It appears that the trial court modified the decree and Benjamin R. Goldstein, without filing any bill of exceptions and without any showing as to motion for rehearing or application for or granting of an appeal, has caused a certified copy of orders of court to be duly filed in this court, and has also filed a printed document, asserted as his abstract of record in said cause.

The aforesaid abstract contains motion to modify as follows:

"Now comes the plaintiff and shows the court that by final judgment and decree rendered herein on the 21st day of February, 1940, she was awarded a divorce from the defendant together with the care, custody and control of Edward Goldstein, minor child of the parties, with the obligation on the behalf of the defendant to maintain said child in clothing and furnish whatever monies are necessary for school and other purposes for said child.

"Plaintiff further shows the court that notwithstanding the order and judgment of the court that the defendant maintain. Edward Goldsein in clothing and furnish whatever monies are necessary for school and other purposes, the said defendant has wholly failed and refused to discharge the obligations so specified and existing and that a controversy exists as to what means are necessary to so maintain said child.

"Plaintiff further shows the court that the sum of twenty-five dollars a month is a reasonable, proper and necessary amount to provide necessities for school and other purposes for said child.

"Wherefore, plaintiff prays the court to modify the divorce decree herein to provide that hereafter the defendant be required to pay plaintiff the sum of twenty-five dollars per month and for all proper orders in the premises.

"On February 2, 1942, appellant, defendant, filed his answer to said motion which, omitting caption, style of cause, signature and venue, is as follows:"

Further, said abstract contains answer as follows:

"Comes now the defendant in the above entitled cause and for his answer to the motion of plaintiff to modify the judgment rendered in said cause by this Court on February 21, 1940, and denies each and every allegation in said motion contained.

"Further answering defendant says the said judgment of February 21, 1940, dissolved the marriage of plaintiff and defendant and awarded the custody of the minor child born of said marriage to plaintiff and denies this Court has power or jurisdiction to modify said judgment."

The aforesaid abstract contains formal matters of appearance of parties, the taking up and consideration of plaintiff's motion, allegation of having heard the evidence, and formal finding as to modification of former decree.

The decree of court then appears as follows:

"It is therefore, by the court, considered, adjudged and decreed that the decree entered in this cause on February 21, 1940, be amended from this date and that the plaintiff herein have and recover of and from the defendant the sum of fifteen dollars per month on the first day of March, 1942, and on the first day of each month thereafter until further order of the Court in full of the obligation of the defendant to maintain Edward Goldstein and it is further by the Court adjudged that all other terms and provisions of the judgment and decree stand unaltered by this order and it is further by the Court adjudged that a payment by the defendant of the amounts herein provided direct to Edward Goldstein may discharge the obligation of this judgment and that in default of payments as herein provided that execution issue."

The abstract further contains what purports to have been the findings and the decree of the court in the divorce proceedings of February 21, 1940.

Pertinent to issue herein the aforesaid decree of February 21, 1940, reads as follows:

"It is further, by the court, adjudged that the plaintiff have the care, custody and control of Edward Goldstein, minor child, with reasonable rights of visitation of said child to the defendant and that the defendant, in accordance with the stipulation heretofore filed herein, maintain said child in clothing and furnish whatever monies are necessary for school and other purposes for said child."

The abstract, outside of paragraph announcing date of filing, caption of cause and venue, consists only of motion to modify, supra, answer to motion, supra, full text of decree on February 21, 1942 (only copy of judgment included herein), and full text of decree on February 21, 1940. We only include herein that part of decree of 1940, pertinent to questions herein involved.

The appellant presents his case alone on points and authorities which, omitting citations, is as follows:

"1. The court erred in sustaining the motion to modify the decree of February 21, 1940, for the reason the motion failed to state facts sufficient to authorize the court to sustain said motion or modify said decree in this there is no allegation of change of condition showing new facts arising after the entry of the original decree.

"2. The motion to modify is treated as a petition in an original action and its failure to state a cause of action is a jurisdictional defect.

"And as the motion failed to allege any fact showing a change of conditions subsequent to the decree of 1940, it failed to state a cause of action and the court erred in sustaining the motion.

"3. The motion alleged the rendition of the...