Hulse v. Warren

• Decision Date: 26 September 1989
• Docket Number: No. 16094,16094
• Citation: 777 S.W.2d 319
• Parties: Patt HULSE, Individually, and Patt Hulse as Guardian of the Estate of Eula Mae Warren, an Incompetent Person, Plaintiffs-Appellants, v. O.T. WARREN, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 319

777 S.W.2d 319

Patt HULSE, Individually, and Patt Hulse as Guardian of the

Estate of Eula Mae Warren, an Incompetent Person,

Plaintiffs-Appellants, v. O.T. WARREN, Defendant-Respondent.

No. 16094.

Missouri Court of Appeals,

Southern District,

Division Two.

Sept. 26, 1989.

C.R. Rhoades, Rhoades, Paul & Paul, Neosho, for plaintiffs-appellants.

Walter Walker, Neosho, for defendant-respondent.

PREWITT, Presiding Judge.

In a two count petition Patt Hulse sought, as an individual and as guardian of Eula Mae Warren, to recover certain sums from defendant. Defendant counterclaimed in four counts. Following nonjury trial judgment was entered for defendant on plaintiffs' claim and for plaintiffs on two counts of the counterclaim. One count had previously been dismissed. Plaintiffs appeal, raising issues only in regard to claims made in the petition.

We are met initially with whether the order entered by the trial court following trial was a judgment from which an appeal may be taken. Generally a judgment must dispose of all the parties and all the issues in the case. Alliett & Williams v. Tri-City Construction Co., 694 S.W.2d 287, 288 (Mo.App.1985).

It is, of course, preferable for the judgment to expressly rule each count of the claims presented. However, where a disposition of one issue necessarily constitutes a ruling on another, a judgment can be final although the count necessarily ruled is not expressly decided. Alliett, supra 694 S.W.2d at 288; Highland Inns Corp. v. American Landmark Corp., 650 S.W.2d 667, 669 n. 1 (Mo.App.1983); Staples v. Dent, 220 S.W.2d 791, 792 (Mo.App.1949).

The counterclaim was in four counts and express rulings denied the first three counts. Count III contended that Patt Hulse converted money in which defendant had an interest, and Count IV asked for an accounting of that money. By denying defendant recovery on Count III the court determined that defendant had no interest in the money referred to in Counts III and IV, so the trial court necessarily determined that defendant would not be entitled to an accounting of it. As all issues were expressly or necessarily determined, a judgment was rendered and the appeal lies.

We turn now to the merits. Patt Hulse is the daughter of Eula Mae Warren. Defendant is Eula Mae Warren's husband. Individually Hulse sought reimbursement for "necessaries" she furnished Eula Mae Warren. As guardian of Eula Mae Warren, Hulse sought reimbursement of the guardianship estate for funds it expended "for the care, treatment and living expenses of Eula Mae Warren". The parties treat both counts of the petition as being for "necessaries" so we do also.

The count of the petition brought by Hulse individually is based upon the rule that a person who directly supplies necessaries to a married woman is entitled to be compensated from her husband who fails to do so, unless she is living apart from him, without his fault. See Attebery v. Attebery, 507 S.W.2d 87, 90-91 (Mo.App.1974); Pfenninger v. Brevard, 129 S.W.2d 924, 925 (Mo.App.1939).

The count brought as guardian of Mrs. Warren's estate is based on the theory that where a husband fails to support a wife and she provides herself with necessaries, she is entitled to reimbursement from her husband. See Attebery, 507 S.W.2d at 89. See also Swanson v. Swanson, 464 S.W.2d 225, 229 (Mo.1971). Generally, on the questions presented and related discussion see Annotation, Modern status of rule that husband is primarily or solely liable for necessaries furnished wife, 20 A.L.R.4th 196 (1983); Annotation, Husband's liability to third person for necessaries furnished to wife separated from him, 60 A.L.R.2d 7 (1958); Annotation, Duty of husband to provide necessaries for wife as affected by her possession of independent means, 18 A.L.R. 1131 (1922).

Mrs. Warren and defendant were married in 1975. Following the marriage they lived in a home they owned in Neosho. At the time of trial (November 7, 1988) she was 75 years of age and defendant 83. They had previously been married to others and both had adult children. In December of 1984 Mrs. Warren suffered a cerebral hemorrhage. At that time Mrs. Warren and Patt Hulse held approximately $90,000 to $100,000 in certificates of deposit in their joint names. This represented money which had belonged solely to Mrs. Warren before she put it in her and her daughter's name. There was evidence that Mrs. Warren referred to it as "my money".

Following Mrs. Warren's cerebral hemorrhage she went to a hospital in Neosho and was later transferred to a hospital in Springfield. She subsequently was placed in a rehabilitative institution in Neosho, and in February of 1985 she returned to the home she occupied with defendant. There Mrs. Hulse and defendant attempted to care for her but after one week found they were not able to do so. Mrs. Hulse and defendant then agreed to move Mrs. Warren to a nursing home in Neosho and established a joint account for her expenses.

There was evidence from defendant that on the day Mrs. Warren was going to the nursing home in Neosho, she told Hulse and defendant, "Use my money, don't use O.T.'s money. If something like this happens to him, he'll need his money." Defendant testified that Mrs. Warren was "lucid" at that time and knew "what she was talking about". Neither party mentions this evidence in their briefs nor did they appear to treat it as significant at trial.

Mrs. Hulse later moved Mrs. Warren to a nursing home in McAlester, Oklahoma because it was closer to her home; Hulse lived in McAlester; and the cost was less there than in the nursing home in Neosho. Mrs. Hulse testified that the move was by agreement with defendant. Defendant denied that he agreed and testified that he did not know where his wife was for nine days after the move until he received a letter from Hulse's attorney to his attorney. Hulse was appointed guardian of the person and estate of Mrs. Warren by the District Court of Pittsburg County, Oklahoma in October of 1986. The evidence conflicted as to whether Mrs. Warren was incompetent from the date of her cerebral hemorrhage or became so after she was moved to McAlester.

Since she was moved to McAlester, Mrs. Warren had been supported by the funds that had been represented by the certificates of deposit. Hulse presented evidence that $55,407.29 had been expended for Mrs. Warren's care and that defendant had not paid any of Mrs. Warren's expenses since she left Neosho.

Although not making findings of fact, in a letter to counsel prior to judgment being entered on December 6, 1988, the trial court found that defendant had "adequately provided" for Mrs. Warren through the time she was at the nursing home in Neosho, that taking her to McAlester was without the consent of the defendant, and determined that he was not liable for the funds expended there. Except for comments contained in that letter, the trial court made no findings of fact. Therefore, all remaining fact issues are considered here as having been found in accordance with the result reached. Rule 73.01(a)(2).

This is not a situation where Mrs. Warren is "separated" from her husband as that word is generally used in the matrimonial sense. "...