Howard v. Howard

• Decision Date: 28 April 1943
• Docket Number: No. 6433.,6433.
• Citation: 171 S.W.2d 92
• Parties: HOWARD v. HOWARD.
• Court: Missouri Court of Appeals

171 S.W.2d 92

HOWARD v. HOWARD.

No. 6433.

Springfield Court of Appeals. Missouri.

April 28, 1943.

Rehearing Denied May 15, 1943.

Appeal from Circuit Court, Greene County, Division No. 2; Warren L. White, Judge.

"Not to be published in State Reports."

Suit by Nettie L. Howard against Kenneth P. Howard for divorce, wherein defendant filed a cross-petition for divorce. Judgment for defendant, and plaintiff appeals.

Affirmed in part, and reversed and remanded with directions in part.

William A. Moon and Fred A. Moon, both of Springfield, for appellant.

G. Purd Hays, of Ozark, for respondent.

BLAIR, Presiding Judge.

This is a suit for divorce, alimony and for care and custody of the female child Genevieve, born of the marriage between plaintiff (appellant) and defendant (respondent). The trial court granted a divorce to plaintiff, fixed her alimony at $35 per month, with $50 attorneys' fee, and awarded the care and custody of the infant daughter, then about two years of age, to the defendant, the father, and taxed the costs to defendant. Defendant filed a cross petition for divorce and asked for the care and custody of said child. After unsuccessful motion for new trial, an appeal was granted to plaintiff by the trial court.

Appellant appears to have been satisfied with the decree of divorce to her and the allowance to her of attorneys' fee, for she makes only three — really two — assignments of error in her brief to this court, towit:

That alimony in gross should have been decreed to her, instead of a monthly allowance of $35 and that the care and custody of the infant daughter should have been awarded to plaintiff, instead of to defendant. Defendant did not appeal.

Appellant contends that the property of respondent was worth at least $20,000, and alimony in gross in the sum of $12,500 should have been granted to her and the care and custody of the infant daughter should have been awarded to her, with maintenance for said child at $100 per month.

While a divorce suit is a suit at law, it is tried as an equity case before the court, and an appellate court may render such judgment as the testimony warrants. However, the trial judge has a tremendous advantage over an appellate court, in that the judge thereof sees the various witnesses in the case and observes their demeanor while testifying, as well as having heard their testimony, and, for that reason, an appellate court should defer somewhat to the trial court in determining what sort of judgment should be entered in the case. If the testimony is contradictory and a finding either way can readily be sustained by the evidence, the finding of the trial court should not be disturbed, even if an appellate court has the power to do so.

The trial judge here must have been wholly disinterested and had long experience in such matters; and, unless his judgment is not authorized by the evidence, this Court should defer largely to his judgment.

In the first place, the trial court could, and probably did, find that the defendant, respondent here, was not worth as much as is claimed by plaintiff; and there was no evidence whatever that the care and custody of the infant daughter was worth $100 per month, as claimed by appellant in her brief.

So the question as to alimony is largely resolved into the question of whether alimony in gross should have been awarded to a wife-plaintiff, entitled to divorce, or whether a monthly alimony could properly have been awarded to her.

The appellant cites two cases supposed to hold that when the wife is granted a divorce, she is entitled to alimony as a matter of course. Appellant does not claim in her brief that she is entitled as a matter of course to alimony in gross. She first cites Stark v. Stark, 115 Mo.App. 436, 91 S.W. 413, 415, by the St. Louis Court of Appeals. In that case the question of alimony in gross or monthly allowance for alimony was not discussed at all. It was an appeal involving the sufficiency of the order of the trial court as to alimony pendente lite. But the court, speaking through Nortoni, J., did say: "If, at the final determination of this suit, respondent should prevail, and a divorce be decreed to her, she would be entitled as a matter of course, to a judgment for alimony, regardless of her own estate. Section 2926, R.S.1899 [Mo.R.S.A § 1519]; Penningroth v. Penningroth, 71 Mo.App. 438. And under the...