Hayes v. Hayes

• Decision Date: 12 June 1941
• Docket Number: 37189
• Citation: 153 S.W.2d 1
• Parties: HAYES v. HAYES
• Court: Missouri Supreme Court

153 S.W.2d 1

HAYES v. HAYES

No. 37189

Supreme Court of Missouri, First Division

June 12, 1941

Rehearing Denied July 25, 1941.

Edward W. Tobin, of St. Louis, and George F. Heege, of Clayton, for appellant.

James Alcorn Rector, of St. Louis (Clarence Garvey, of St. Louis of counsel), for respondent.

OPINION

DALTON, Commissioner.

This is an appeal from a decree entered on the application of defendant further modifying a decree of divorce 'as to the allowance for support of Mary Celeste Hayes Stubbs,' an adopted daughter of plaintiff and defendant, by discharging defendant 'from the further payments of $ 75.00 per month for the support of said Mary Celeste Hayes Stubbs.' Motion for a new trial was filed and overruled and plaintiff appealed. We shall refer to the parties as plaintiff and defendant.

On April 18, 1931, a decree of divorce was entered in the circuit court of St. Louis County in favor of plaintiff and against the defendant. The decree further provided 'that said plaintiff have the care, custody and control of the adopted minor child, Mary Celeste Hayes,' and stated 'It appearing to the Court that the parties hereto have filed a stipulation and agreement in this cause, it is thereupon ordered by the Court that the allowance for alimony and for support, maintenance and education of the adopted child, be in accordance therewith.'

The agreement and stipulation, theretofore entered into by and between the parties, was then set out in the record as a part of the decree of divorce. It provided that defendant pay or cause to be paid to plaintiff 'for her support and maintenance and for the support and maintenance of their adopted daughter, Mary Celeste Hayes,' $ 332 per month until January 7, 1932, and, thereafter, $ 300 per month, 'the payments to be continued * * * for and during the lifetime of party of the first part (plaintiff) or until she shall remarry.' The agreement and stipulation further provided that defendant pay to plaintiff 'whatever amount is necessary, not, however, exceeding the sum of $ 400.00 a year, for the education of their adopted daughter * * * until said daughter shall have completed her education.'

Defendant agreed to, and subsequently did, make certain alleged irrevocable assignments of his interest in and to certain income from the estate of Joseph M. Hayes, deceased, to secure the monthly payments to plaintiff, as provided for by said agreement.

Plaintiff on her part obligated herself that, in the event she filed suit for or obtained a divorce from the defendant, she would not ask or accept any other or greater provision for alimony or support for the daughter than the amounts provided in the agreement; that she would ask the care and custody of the adopted daughter and would care for her support and education out of the funds paid by plaintiff, without asking additional amounts for such purposes; and that she would make reasonable efforts to sell certain real estate, as soon as the property could be sold, and would pay the debt of defendant to a certain named party in the sum of $ 1,500, from the proceeds of such sale.

On November 2, 1932, the defendant filed in said court a motion to modify the decree of divorce granted to plaintiff on the 18th of April, 1931. Plaintiff contested the jurisdiction of said court to amend, alter, change, modify, or disturb the vested rights acquired by plaintiff under said agreement. She filed a motion to strike defendant's motion, but her motion to strike was overruled. Appellant's abstract of the record recites that on December 22, 1932, she made application to this court for a writ of prohibition to arrest the alleged unlawful exercise of jurisdiction by the circuit court of St. Louis County, but the application was denied.

On February 20, 1933, the circuit court determined that it had jurisdiction to modify the decree of divorce and entered an order modifying the decree of divorce with reference to the provisions, supra, for the support and maintenance of plaintiff and her adopted daughter, by providing that beginning March 1, 1933, the plaintiff be awarded alimony in the sum of $ 150 per month, 'said payments to be continued thereafter during the lifetime of the plaintiff, or until she shall remarry, and plaintiff (be) awarded the sum of $ 75.00 per month for the support and maintenance of the minor adopted child, Mary Celeste Hayes, all of said payments * * * to be in lieu of and instead of the former provisions for $ 300.00 per month and $ 400.00 per year.'

Plaintiff took the necessary steps to present said cause to the St. Louis Court of Appeals on appeal, but the decree for modification was affirmed and her motion for rehearing denied. The abstract of the record refers to the opinion in the case of Hayes v. Hayes, Mo.App., 75 S.W.2d 614, affirming the court's decree, and recites that on December 22, 1934, a petition for certiorari was filed in this court alleging conflict between said opinion and prior controlling opinions of this court, but the application was denied February 7, 1935. How some of these matters became a part of the record in this cause does not appear.

On May 16, 1939, defendant filed the present motion to modify the circuit court's 'modified decree made and entered * * * on the 20th day of February, 1933, with respect to allowance and award made to plaintiff in the sum of $ 75.00 per month for the support of a minor adopted child, Mary Celeste Hayes.' In support of the motion defendant alleged the marriage of plaintiff and defendant in 1907, the adoption of a child in 1921, the divorce decree of 1931, the award by the court to plaintiff of $ 300 per month 'as and for alimony and for support and maintenance of said Mary Celeste Hayes,' the modification of the decree by the court on February 20, 1933, the further drastic reduction in defendant's income since said date, the marriage of the adopted daughter, that the daughter was not attending school, but was being supported by her husband, and that the daughter was emancipated by her marriage and defendant had no control over her and was no longer responsible for her maintenance. Defendant prayed the court to 'modify its last aforesaid decree, in that defendant be discharged from the further payment of $ 75.00 a month to plaintiff for the support of the aforesaid Mary Celeste Hayes Stubbs.'

To this motion of defendant, the plaintiff, purporting to appear solely for the purposes of her motion, filed a verified motion to strike from the files defendant's said second motion to modify. Plaintiff's motion to strike recites, among other things: 'That by said motion defendant seeks to be relieved from the binding contractual obligations imposed upon him by a valid written agreement entered into between plaintiff and defendant immediately after their separation as husband and wife and shortly prior to the institution of the divorce proceedings by plaintiff against defendant herein, by which agreement the respective property rights and interests of plaintiff and defendant as husband and wife, as well as all matters as to the future support and maintenance by defendant of plaintiff, were fully, finally and irrevocably determined, adjudicated, adjusted and settled. * * * That this Honorable Court is without jurisdiction to amend, alter, change, modify, or in any other manner destroy or disturb the vested contract rights of plaintiff under said aforementioned agreement. * * * That the amount payable monthly to plaintiff by the defendant under the terms of the aforementioned agreement is $ 300.00 per month, or $ 3600.00 per year; * * * and that the value of plaintiff's contract rights involved herein, based on the payments to be made to plaintiff under said agreement during her life expectancy is $ 61,200.00.'

The abstract of the record does not show that any evidence was heard on plaintiff's motion to strike defendant's motion, although an agreed statement of facts was filed before the motion was ruled. Plaintiff's motion to strike was overruled and no other pleadings were filed.

In support of his motion to modify the decree previously modified, defendant offered in evidence the agreed statement of facts signed on behalf of the parties by their respective attorneys. This statement recites that it was prepared for use in connection with the motion to modify, the motion to strike, and other motions. It incorporates by reference the abstract of the record (record on the appeal of the first motion to modify) as filed in the St. Louis Court of Appeals, the original agreement between the parties as executed prior to the decree of divorce, and certain assignments of income pursuant to such agreement. (For a more detailed statement of the facts on the appeal from the first modification, see opinion in Hayes v. Hayes, supra.) The stipulation further shows certain facts with reference to defendant's present income and financial condition, and his compliance with the terms of the modification of February 20, 1933. It shows the terms of instruments executed by plaintiff acknowledging receipt of such payments, to wit, that 'such receipt and acceptance will in no way prejudice my rights under contract entered into between said Joseph J. Hayes and myself under date of April 9, 1931.' The stipulation fixes the present age of the adopted daughter as 18 years, gives the date of her marriage, and further stipulates that if the original agreement between plaintiff and defendant is still valid and binding 'the value of plaintiff's contract rights involved thereunder, based on the payments to be made to plaintiff thereunder during her life expectancy, aggregate the sum of approximately $ 61,200.00.'

Plaintiff offered no evidence on the hearing of the motion to modify but objected to the...