Herbert v. Herbert

• Decision Date: 06 December 1927
• Citation: 299 S.W. 840,221 Mo.App. 201
• Parties: ALMA HERBERT, APPELLANT, v. WYMAN C. HERBERT, RESPONDENT. [*]
• Court: Missouri Court of Appeals

299 S.W. 840

221 Mo.App. 201

ALMA HERBERT, APPELLANT, v. WYMAN C. HERBERT, RESPONDENT. ^[*]

Court of Appeals of Missouri

December 6, 1927

Appeal from the Circuit Court of the City of St. Louis.--Hon. Claude O. Pearcy, Judge.

AFFIRMED.

Judgment affirmed.

Jeffries Simpson & Plummer for appellant.

The circuit court granting a divorce retains jurisdiction for the purpose of awarding alimony to the innocent and injured wife during the joint lives of the parties. R. S. 1919, secs 1806, 1812; State ex rel. Shoemaker v. Hall, 257 S.W. 1047; Laumeier v. Laumeier, 271 S.W. 481; Cole v. Cole, 89 Mo.App. 228; Wald v. Wald, 168 Mo.App. 377; Brown v. Brown, 209 Mo.App. 416; Francis v. Francis, 192 Mo.App. 710.

Robert J. Kratky, Henry H. Spencer and Gilbert L. Whitley for respondent.

(1) Trial court did not err in overruling and refusing to grant plaintiff's motion, because: (a) The court was without jurisdiction to entertain plaintiff's motion for alimony. Darby v. Darby, 277 S.W. 894, and cases cited; Cody v. Cody, 154 P. 952; O'Brien v O'Brien, 62 P. 598; Howell v. Howell, 37 P. 770; Gillespie v. Andrews, 248 P. 715; Bacigalup v. Bacigalup, 238 P. 93; Moross v. Moross, 87 N.W. 1035; Stewart, "Marriage and Divorce," section 376. (b) The judgment in the divorce proceeding is final and is res adjudicata as to every question that might have been litigated under the issues. Hutton v. Dodge, 198 P. 165; Weidman v. Weidman, 48 N.E. 506; Cameron v. Cameron, 140 N.W. 700. (c) The order of court granting absolute divorce to plaintiff is final, and plaintiff is bound by it and the court has no power over it or to change it by order. Conant v. Conant, 278 S.W. 90; Prichard v. Prichard, 176 S.W. 1124; Weidman v. Weidman, 48 N.E. 506; Stewart, "Marriage and Divorce," section 366.

DAUES, P. J. Becker and Nipper, JJ., concur.

OPINION

DAUES, P. J.

This is an appeal from a decree of the circuit court of the city of St. Louis overruling a motion of appellant for an allowance of alimony. It appears that appellant, to whom we will refer as plaintiff, sued defendant for divorce on April 3, 1924. In her petition she did not ask for alimony but prayed for absolute divorce, concluding the petition however with the usual prayer that the court make such "further order and judgment from time to time touching the premises as to the court may seem meet and just." A decree of absolute divorce was granted plaintiff at the October term, 1924, of said court. Nothing further was done until March 6, 1925, during the February term of said court, when plaintiff filed her motion for alimony, in which she alleged that she had lost her business position and had been compelled to take a less remunerative employment, and that certain of her property had lost its value. Due notice of this motion was given to the defendant, who failed to appear to answer same. The matter was then submitted to the court on plaintiff's evidence. The court took the matter under extended advisement and finally ruled that it had no jurisdiction to entertain a motion for alimony filed at a subsequent term where the petition neither prayed for nor the judgment in the divorce decree touched the issue of alimony. The correctness of that action is now challenged.

Plaintiff's counsel takes the position that the question of alimony, though not prayed for or decreed in an original divorce case is always open for adjudication. Defendant's counsel insists that where an absolute decree of divorce is granted upon a petition which does not pray for alimony, and the decree granting plaintiff an absolute divorce which is wholly silent as to the question of alimony both as to immediate award or as to the retention of jurisdiction of the court over that question precludes the granting of alimony on a motion filed long after the expiration of the term at which such decree of divorce was granted.

In appellant's brief this one point is made: That the circuit court granting a divorce retains jurisdiction for the purpose of awarding alimony to the innocent and injured wife during the joint life of the parties, and cites the following statutes and authorities: R. S. Mo. 1919, sec. 1806; R. S. Mo. 1919, sec. 1812; State ex rel. Shoemaker v. Hall, 257 S.W. 1047; Laumeier v. Laumeier, 271 S.W. 481; Cole v. Cole, 89 Mo.App. 228; Wald v. Wald, 168 Mo.App. 377, 151 S.W. 786; Brown v. Brown, 209 Mo.App. 416, 239 S.W. 1093; Francis v. Francis, 192 Mo.App. 710, 179 S.W. 975.

Section 1806, Revised Statutes Missouri, 1919, does provide that the court on application of either party may make such alteration from time to time as to allowance of alimony and maintenance as may be proper, but that statute has never been construed, as far as we can learn, to hold that such modification or readjudication as to allowance of alimony may be made in a case of this kind. The cases all deal with a situation either where the alimony was granted to a wife in the original decree, or where the question of children was involved. The same situation is true with reference to the other section of the statutes above cited.

Now, a brief analysis of the cases submitted in appellant's brief:

In State ex rel. Shoemaker v. Hall, supra, the court held that the lower court retained jurisdiction after divorce as to all questions involving the custody and support of children.

Laumeier v. Laumeier, supra, interprets sections 1806 and 1812, Revised Statutes 1919, to mean that the trial court after divorce has jurisdiction to modify a divorce decree in respect to the maintenance of a child. Cole v. Cole, supra, is exactly similar to the Laumeier case.

Wald v. Wald, supra, first decides that the court may change its order regarding custody of children, and then holds that where there is a judgment for alimony in the original decree the court retains jurisdiction to modify it from time to time.

In Brown v. Brown, supra, there was a stipulation entered into between the parties as to alimony, and the court originally decreed the wife $ 75 a month as alimony in accordance with the stipulation. This court, through Judge BECKER, held that such decree was open to the court at a subsequent term for modification.

In Francis v. Francis, supra, again it was held that alimony as awarded in an original decree is subject to modification subsequently. This case is overruled, in part, in Nelson v. Nelson, 221 S.W. 1066, not affecting this question however.

These are all of the cases cited under "Points and Authorities" in appellant's brief, and we do not see that they throw any light on our question.

In the instant case, the record shows that there were no children from this marriage; no alimony was asked and none was given or denied. While this question does not seem to be decided so far as we can find in the Missouri decisions, the case of Robinson v. Robinson (Mo. Supp.), 186 S.W. 1032, does throw some light on the question. In that case there was a decree granting a divorce to the wife and also awarding her the custody of her son, but was silent as to what provision should be made for the child. The Supreme Court there held that since the decree provided...