Hayes v. Hayes

• Decision Date: 08 November 1934
• Docket Number: No. 22837.,22837.
• Citation: 75 S.W.2d 614
• Parties: HAYES v. HAYES.
• Court: Missouri Court of Appeals

75 S.W.2d 614

HAYES v. HAYES.

No. 22837.

St. Louis Court of Appeals. Missouri.

November 8, 1934.

Rehearing Denied November 23, 1934.

Appeal from Circuit Court, St. Louis County; Robt. W. McElhinney, Judge.

"Not to be published in State Reports."

Divorce action by Sallie C. Hayes against Joseph J. Hayes, in which a decree of divorce was entered for plaintiff. From an order modifying the decree in respect to the allowance for the support of plaintiff and the adopted daughter of the parties, plaintiff appeals, and, from an unsatisfactory order allowing plaintiff attorney's fees for prosecution of her appeal from the first order, plaintiff likewise appeals.

Affirmed.

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

James Alcorn Rector, of St. Louis, for respondent.

BENNICK, Commissioner.

This is a consolidated cause, involving two appeals by Sallie C. Hayes, the divorced wife, from certain orders and judgments of the circuit court of St. Louis county which were entered in connection with proceedings instituted by Joseph J. Hayes, the divorced husband, looking to the modification of the divorce decree respecting the allowances made therein for the support of plaintiff and the adopted daughter of the parties, one Mary Celeste Hayes, a minor, now about thirteen years of age.

Plaintiff and defendant were married on June 15, 1907, and thereafter continued to live together as husband and wife until March 26, 1931, when the final separation occurred. No children were born of the marriage; but in December, 1921, Mary Celeste Hayes was adopted, she having evidently been but a few months of age at the time.

On April 13, 1931, plaintiff filed in the circuit court of St. Louis county her petition for a divorce from the defendant, alleging general indignities as the basis for her action. On April 18, 1931, defendant having made default, the court entered a decree for plaintiff, granting her the relief prayed, and awarding her the care, custody, and control of the adopted minor child, Mary Celeste Hayes.

So far as concerned the allowance of alimony for plaintiff and maintenance for the child, the court, in its decree, adopted as a part thereof an agreement and stipulation theretofore entered into between the parties on April 9, 1931, respecting the provisions to be made by defendant in that regard, in view of plaintiff's representations that she was about to file her action for divorce.

By the terms of such agreement, defendant obligated himself to pay to plaintiff for her support and for the maintenance of their adopted daughter the sum of $332 a month, beginning May 1, 1931, and continuing for nine months, after which he agreed to pay plaintiff the sum of $300 a month until such time as she should die or remarry. In addition, he obligated himself to pay such sum as might be necessary, not exceeding the sum of $400 a year, for the education of the adopted daughter at private schools, such payments to be continued until the adopted daughter's education had been completed.

By other terms of the agreement, he promised to turn over to plaintiff, as the irrevocably designated beneficiary, a life insurance policy in the sum of $10,000, he to pay all premiums as they fell due; to pay, for the period of nine months commencing April 1, 1931, all insurance premiums and taxes becoming a charge upon or against the real estate occupied by plaintiff at 4 Highland place, Glendale, Mo., which defendant had given to plaintiff in 1925; and to pay the interest accruing upon an indebtedness of $1,500 owing to plaintiff's mother, Mrs. Celeste Cooke, until such time as the indebtedness might be satisfied out of the proceeds derived from the sale of the property by plaintiff.

It was further provided in the agreement that defendant should execute to plaintiff an irrevocable order or partial assignment to be filed with the St. Louis Union Trust Company as trustee under the will of Joseph M. Hayes, defendant's deceased father, directing the said trustee to pay to plaintiff, out of the income otherwise payable from time to time to defendant under the terms of the trust created by the terms of the will of Joseph M. Hayes, the amounts necessary to pay plaintiff the monthly payments elsewhere provided for.

So matters stood from and after April 18, 1931, when the divorce was granted, until November 2, 1932, when defendant filed in the cause his motion to modify the decree in certain particulars. He represented to the court that in the period between the granting of the decree and the filing of his motion he had paid out, pursuant to the terms of the decree, the aggregate sum of $6,445.56, and had turned over to plaintiff the life insurance policy for the amount of $10,000; and that, unless he was relieved from the obligations imposed upon him by the decree, he would thenceforth be required to pay out annually the aggregate sum of $4,555, a sum which his means and income no longer permitted him to expend.

He then set up that at the time of the entry of the decree of divorce his average monthly income from the trust estate created by his father was the sum of $808.06, but that, owing to economic conditions, the income from the trust fund had steadily decreased, until, at the time of the filing of his motion, he was receiving an average monthly income of only $369.47, out of which, after plaintiff was paid the sum of $300 a month called for by the terms of the decree, he had but the sum of $69.47 remaining with which to meet the other payments provided for by the decree as well as his own individual expenses.

He further represented to the court that, though he was engaged in the insurance business, his income from such business had been reduced to a minimum, and that his future income from such business was largely speculative and dependent upon economic conditions generally.

He prayed the court that he be relieved of the obligation of paying the sum of $400 annually for the education of his adopted daughter in a private school, pointing out that the public schools of St. Louis county were of high standing and adequate for his adopted daughter's needs; that he be relieved of the obligation of paying the annual premium of $465 upon the policy of life insurance and the interest on the note for $1,500 held by plaintiff's mother; and that thenceforth he be required to pay only the sum of $150 a month for alimony for his wife and maintenance for his adopted daughter, the specific amount to be apportioned for each of such purposes to be designated by the court.

On December 3, 1932, plaintiff filed her motion to strike defendant's motion to modify, the ground of her motion being the point largely relied upon by her on this appeal, namely, that the agreement of April 9, 1931, entered into between the parties, had been approved and adopted into the final decree of divorce by the court, and that the court was thereafter without jurisdiction to amend, alter, change, modify, or disturb the vested rights acquired by plaintiff under said agreement.

On December 15, 1932, the court overruled plaintiff's motion to strike; and on January 13, 1933, defendant's motion to modify was called up for a hearing upon the merits.

To set out in detail the numerous figures submitted at the hearing would serve no useful purpose. Suffice it to say that defendant's evidence, following the tenor of his representations in his motion to modify, disclosed that, whereas at the time of the entry of the decree he had enjoyed a gross annual income in excess of $12,000, by the time of the hearing upon his motion his income from all sources had dwindled to a point where he had no more than $275 a month left after his monthly payments to plaintiff were made. It was shown that the income from the trust estate alone had decreased 42.8 per cent.; that his personal property, consisting principally of stocks, had become practically worthless; that such real estate as he owned, instead of producing an income, had become an added source of expense to him; and that he had been forced to permit his life insurance policies to lapse for nonpayment of premiums.

Meanwhile, on September 2, 1931, he had remarried; and on September 18, 1932, a son was born of the marriage, on account of which, along with other matters, he had incurred indebtedness, a large portion of which was still unpaid. There was, of course, the usual showing of the expenses incidental to the maintenance of his second household and the support of his second family.

Plaintiff's evidence was to the effect that all the income she had was what she received from defendant under the terms of the divorce decree; that defendant, after January 6, 1932, had not paid the premiums upon the policy of life insurance, the cash surrender value of which was some $2,500; that he was in arrears in the payment of the tuition for his adopted daughter at a private institution; and that for the calendar year of 1932, at least, her expenses had been in excess of the sum received from defendant.

On February 20, 1933, the court entered an order modifying the decree, so that beginning March 1, 1933, defendant should pay plaintiff the sum of $150 a month for alimony, and the sum of $75 a month for the support and maintenance of the adopted child, Mary Celeste Hayes, such payments to be in lieu and instead of the former provision for $300 a month for alimony and maintenance and $400 a year for private schooling. A further allowance of $300 was made for attorney's fees.

In due course plaintiff perfected her appeal to this court from such order, the appeal being granted on April 19, 1933; and on the same day she filed her motion for the allowance of counsel fees and expenses in connection with the prosecution of such appeal.

On September 22, 1933, a hearing was had upon such latter motion, at which the evidence adduced was of the same general tenor and effect as that upon the motion...