Hawkins v. Hawkins, 57371

Decision Date22 July 1974
Docket NumberNo. 57371,No. 2,57371,2
Citation511 S.W.2d 811
PartiesRella L. HAWKINS, Respondent, v. Robert W. HAWKINS, Appellant
CourtMissouri Supreme Court

Richard Wolff, Kappel, Neill, Staed & Wolff, St. Louis, for plaintiff-respondent.

James L. Nouss, Donald R. Carmody, Sumner, Hanlon, Sumner, MacDonald & Nouss, Inc. Clayton, for defendant-appellant.

HOUSER, Commissioner.

This is an appeal from a judgment and decree of the Circuit Court of St. Louis County, Division No. 14, following a court trial of a contested divorce case, in which plaintiff-wife was awarded and defendant-husband was denied a decree of divorce, and plaintiff was awarded custody of a minor child; alimony in gross in the sum of $100,000; monthly alimony in the sum of $200; monthly child support of $250; attorneys' fees of $12,982; $1,780.54 expenses of litigation, and costs. This Court has jurisdiction because the amount in controversy exceeds $30,000 and the notice of appeal was filed prior to January 1, 1972.

Appellant-husband raises three points on appeal: (1) error in awarding both alimony in gross and from year to year; (2) error in awarding grossly excessive sums in abuse of its discretion contrary to the facts and circumstances shown; (3) error in granting respondent a divorce because she failed to prove that she was the innocent and injured party, and the divorce should have been granted to appellant.

On the first point appellant asserts that alimony is purely a creature of statute and is limited by statute; that § 452.080 authorizes an award of alimony in gross or from year to year but not both.

Section 452.070, RSMo 1969, V.A.M.S., provides that '(w)hen a divorce shall be adjudged, the court shall make such order touching the alimony and maintenance of the wife, * * * as, from the circumstances of the parties and the nature of the case, shall be reasonable * * *.'

Section 452.080, RSMo 1969, V.A.M.S., provides that '(u)pon a decree of divorce in favor of the wife, the court may, in its discretion, decree alimony in gross or from year to year. * * *.'

Citing Council Plaza Redevelopment Corp. v. Duffey, 439 S.W.2d 526 (Mo. banc 1969); Longacre v. Knowles, 333 S.W.2d 67 (Mo.1960), and Black's Law Dictionary definition of the word 'or', appellant asserts that all words in common use, including the word 'or', are to be construed within the limits of their natural, plain and ordinary meaning; that the word 'or' when used in its ordinary sense 'marks an alternative 'which generally corresponds to the word 'either"', Duffey, supra, 439 S.W.2d l.c. 532; that it is a disjunctive particle used to express an alternative or to give a choice of one among two or more things. In support of the construction for which he contends appellant cites Deigaard v. Deigaard, 114 So.2d 516 (Fla.App.1959), and Brewer v. Brewer, 242 S.C. 9, 129 S.E.2d 736 (1963), both construing statutes authorizing an award of alimony in periodic payments or payment in a lump sum; both holding that the statute allows an award of either but not both.

While the word 'or' is disjunctive in its nature and in its ordinary sense marks an alternative which generally corresponds to the word 'either', Council Plaza Redevelopment Corp. v. Duffey, supra; Jenkins v. Meyer, 380 S.W.2d 315 (Mo.1964); Horton v. Estate of Elmore, 420 S.W.2d 48 (Mo.App.1967); Sheets v. Thomann, 336 S.W.2d 701 (Mo.App.1960), '* * * it is not always accepted in accordance with its strict grammatical sense, and not infrequently it becomes necessary to give to the word a meaning other than, or different from, that ordinarily assigned to it in common speech. * * * (T)he ordinary significance of the word, that is, as a disjunctive, is often discarded in order to effectuate a contrary manifested intent, and the power of the courts to do this in a proper case has never been questioned. The courts have held the doctrine to be elementary that the word 'or' may be used, interpreted, or construed in a conjunctive or copulative sense rather than in its disjunctive meaning, and hence may be construed as meaning 'and', especially when so doing prevents an abused or unreasonable result. However, the ordinary interpretation given to the word 'or' is not as a conjunctive; * * * and it never means 'and' unless the context requires such construction. * * * (I)t should be construed as 'and' only when necessary to give effect to the intention, and the substitution should not be made where such construction would be inconsistent with the intent as shown by the whole context and the circumstances or unless its literal meaning renders the sense dubious.' 67 C.J.S. Or. pp. 517, 518.

On the disjunctive use of the word 'and': 'Ordinarily the words 'and' and 'or', are in no sense interchangeable terms, but, on the contrary, are used in the structure of language for purposes entirely variant, the former being strictly of a conjunctive, the latter, of a disjunctive, nature. Nevertheless, in order to effectuate the intention of the parties to an instrument, a testator, or a legislature, as the case may be, the word 'and' is sometimes construed to mean 'or'. This construction, however, is never resorted to except for strong reasons and the words should never be so construed unless the context favors the conversion; as where it must be done in order to effectuate the manifest intention of the user; and where not to do so would render the meaning ambiguous, or result in an absurdity; or would be tantamount to a refusal to correct a mistake. * * *' 3A C.J.S. And, pp. 451--453.

Missouri authorities on the interchangeability of the words 'and' and 'or' are collected in Jones v. Haines, Hodges & Jones Bldg. & Develop. Co., 371 S.W.2d 342, 344(6) (Mo.App.1963); City of St. Louis v. Consolidated Products Co., 185 S.W.2d 344, 346(2) (...

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  • Laclede Gas Co. v. Labor and Indus. Relations Com. of Mo.
    • United States
    • Missouri Court of Appeals
    • July 12, 1983
    ...921 § 1; Laws 1975-76 p. 302 § 1; Laws 1977 p. 467 § 1; Laws 1978 p. 588 § 1; Laws 1982 p. 494 § 1.7 One Missouri case, Hawkins v. Hawkins, 511 S.W.2d 811, 813 (Mo.1974) holds that the legislature inadvertently used the word "or" when it referred to "... alimony in gross or from year to yea......
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    ...departed from the plain meaning of the words used and found “or” to mean “and,” and “shall” to mean “may.” See, e.g., Hawkins v. Hawkins, 511 S.W.2d 811, 813 (Mo.1974); Farmers & Merchs. Bank & Trust Co. v. Dir. of Revenue, 896 S.W.2d 30, 33 (Mo. banc 1995). 10. These indicia of legislative......
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    ...human being." Use of the disjunctive "or" indicates an alternative which generally corresponds to the word "either." Hawkins v. Hawkins, 511 S.W.2d 811, 812 (Mo.1974). Therefore, a person is guilty of capital murder if he either kills or causes the killing of another. The submitted instruct......
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    ...such construction is not mandated when it is necessary to do otherwise to give effect to the legislative intent. See Hawkins v. Hawkins, 511 S.W.2d 811, 812 (Mo.1974); Crawford, Statutory Construction § 411, p. 765 Without dwelling on the history of the statute at length, the obvious legisl......
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