Goth v. Goth

• Decision Date: 14 December 1943
• Citation: 167 S.W.2d 384,237 Mo.App. 360
• Parties: John Goth, Respondent, v. Elizabeth Goth, Appellant
• Court: Kansas Court of Appeals

167 S.W.2d 384

237 Mo.App. 360

John Goth, Respondent, v. Elizabeth Goth, Appellant

Court of Appeals of Missouri, Kansas City

December 14, 1943

Appeal from Henry Circuit Court; Hon. Dewey P. Thatch, Judge.

Reversed.

N B. Conrad and Ted Conrad for respondent.

(1) Where, in connection with divorce proceedings, there is a contract between the parents, whereby the father makes provision for the future support of a minor child, which is accepted by the mother as satisfactory, he is no longer liable in an action by her for support furnished the minor child by her. La Rue v. Kempf, 186 Mo.App. 57, 171 S.W. 588; Lochrie v. Lochrie, 108 S.W.2d 178. (2) Appellant's Point (1) and the cases cited thereunder are not applicable to this case. See brief and argument. (3) Appellant's Point (2) and the cases cited thereunder are not applicable to this case.

Kelso Journey for appellant.

(1) A court is without power or jurisdiction to modify a judgment for maintenance of a minor child in a divorce proceedings retrospectively. Nelson v. Nelson, 282 Mo. 412, 221 S.W. 1066; Schneider v. Schneider, 273 S.W. 1081; Myers v. Meyers, 22 S.W.2d 853; Sistare v Sistare, 218 U.S. 1, 30 S.Ct. 682, 54 L.Ed. 905, 28 L R. A. (N. S.) 1068, 20 Ann. Cas. 1061; 27 C. J. S. 1235, Sec. 322. (2) The adjudication of a question directly involved in a prior suit is conclusive in a subsequent suit upon the same issues between the same parties. Ex parte Messina, 128 S.W.2d 1082; Perry v. First Nat. Bank et al., 91 S.W.2d 78; Brady v. Brady, 71 S.W.2d 42.

OPINION

Shain, P. J.

This is an appeal from the action of the circuit court in setting aside a judgment.

The controversy herein grows out of a judgment of divorce granted to Elizabeth Goth, the appellant herein, and wherein John Goth, the respondent herein and defendant in the divorce proceedings, is the respondent.

The decree of divorce involved was granted September 14, 1925, in the Circuit Court of Henry County, Missouri. In said divorce proceeding the appellant herein was given the custody of the minor daughter, Lorine Goth, and a stipulation was duly entered into by the parties in settlement of property rights wherein the husband, respondent herein, paid the wife, appellant herein, the sum of three thousand dollars.

Concerning said sum so paid, the agreement reads as follows:

"Said sum of $ 3000 is accepted by Elizabeth Goth in full settlement of all claims whatsoever kind and nature that she may have against the said John Goth and all material interests in his real estate or personal property; and said Elizabeth Goth, being awarded the care and custody of the infant child of the parties hereto and she is to care for, maintain, support, educate and provide for said child out of the said sum of $ 3000 herein provided to be paid said Elizabeth Goth and is not to buy for said child on account of the plaintiff and is to hold said John Goth harmless for all bills and expenses contracted for and on behalf of said infant child, Lorine Goth."

About six years after the divorce was granted the mother, appellant herein, filed motion asking allowance from respondent for support of the minor daughter. An allowance was made and duly met by the father, respondent herein.

The aforesaid allowance was changed in 1934 and allowance duly paid. On October 4, 1935, the allowance was again changed and fixed at $ 10 per month, which sum the father, respondent herein, paid up to June 1, 1939.

On August 9, 1941, the daughter married, and on September 2, 1941, the mother, appellant, caused to be issued an execution and garnishment, based upon the court allowance of October 4, 1935, supra, wherein the amount asked was $ 287.60. The aforesaid sum represented $ 10 per month from time, June 1, 1939, when payments ceased to time of the marriage of the daughter.

On September 8, 1941, the father filed motion to set aside the judgment upon which execution and garnishment proceeding were based. Thereafter, and before the hearing, the mother, appellant, caused the execution proceedings to be dismissed.

The hearing in above was had on September 12, 1941, and the judgment of the trial court was that the judgment of October 4, 1935, be set aside and canceled.

From the aforesaid judgment, the mother, Elizabeth Goth, duly appealed.

Opinion.

The judgment, after noting matters of agreement, concludes as follows:

". . . that the defendant has cared for and maintained said infant child until August 9, 1941; and the court having duly considered the same doth find that although the agreement entered into between the plaintiff and defendant at the time of the divorce did not relieve the plaintiff as the father of the responsibility of maintaining the daughter during minority, the agreement is now binding upon the defendant when she seeks to collect an amount under the judgment from the plaintiff to compensate her for maintaining the daughter during her minority, because in so maintaining the daughter, the defendant was doing what she was bound to do under the agreement."

The case at bar appears as distinguished from all cases and texts cited in briefs. Herein it appears that the mother, who is seeking to collect for default payments under the modification of October 4, 1935, and who had entered into the agreement, supra, caused execution and garnishment proceeding to be instituted against the father, respondent herein, to collect an unpaid balance based upon the judgment of October 4, 1935.

The record herein discloses no direct joining of issue on the question presented in the excution and garnishment proceeding, other than an allegation that such action had been taken. However, the husband and father did file a motion asking that the judgment of October 4, 1935, be set aside on specific grounds based upon the aforesaid agreement of the wife and mother to support and maintain said infant.

The theory of the father, respondent herein, is clearly expressed in the following paragraphs of his motion, to-wit:

"Defendant Elizabeth Goth made no complaint about the nonpayment of the $ 10 per month until June 30, 1941, when she had a lawyer in her home town of Grand Island, Nebraska, write to plaintiff for the payments calling them 'alimony,' showing that she thought the payments were hers instead of the girl's.

"For a long time the said daughter has been working for Sears-Roebuck & Company in Kansas City, Missouri, residing in Independence, Missouri, and her mother, defendant Elizabeth Goth has been residing at Grand Island, Nebraska. The girl has been maintaining herself.

"The said daughter Lorine Goth, then over 18 years of age, got married on August 9, 1941, and is now living with her husband Earl Eugene Myers, in Independence, Missouri.

"No one has any legal interest in this judgment. Having been provided for and maintained during her minority until her marriage, the said daughter has no interest in the judgment. The defendant Elizabeth Goth has no interest in the judgment, or any legal right thereto, because if she did anything toward the maintenance of the daughter before the daughter's marriage, she was only doing what she was bound to do under her written contract of September 14, 1925.

"Wherefore, plaintiff prays the court to set aside said judgment and to quash the execution and the garnishment in this cause."

The record herein discloses that prior to any hearing upon respondent's motion to set aside the judgment of October 4, 1935, the appellant, who had instituted execution and garnishment proceeding, caused same to be dismissed.

The record does not show that the appellant herein filed any answer or pleading of any nature to respondent's motion to set aside the judgment of October 4, 1935. However, the appellant appeared as a witness at the...