Jeans v. Jeans

• Decision Date: 09 April 1957
• Docket Number: No. 7552,7552
• Citation: 300 S.W.2d 870
• Parties: C. Rex JEANS, Plaintiff-Appellant, v. Patricia Jane JEANS, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 870

300 S.W.2d 870

C. Rex JEANS, Plaintiff-Appellant, v. Patricia Jane JEANS, Defendant-Respondent.

No. 7552.

Springfield Court of Appeals, Missouri.

April 9, 1957.

Stanley P. Clay, Emerson Foulke, Joplin, for appellant.

Ray E. Watson, Joplin, Charles E. Ruyle, Neosho, for respondent.

McDOWELL, Presiding Judge.

This appeal is from a judgment rendered in the Circuit Court of Newton County, Missouri, allowing defendant $2,000 in attorney fees and suit money in the sum of $750.

The record shows plaintiff and defendant were divorced in Newton County, March 2, 1954; that plaintiff was awarded care and custody of the three minor children and defendant awarded alimony in the sum of $1,000 payable April 1, 1954, $350 per month, the first monthly payment being due May 1, 1954, and a like sum payable on the first of each month for the next 17 months; and, $250 a month thereafter payable on the first of each succeeding month.

A motion to modify original decree of divorce was filed by plaintiff October 20, 1955, asking for permission to remove custody of the minor children from Missouri to Oklahoma.

On January 12, 1956, defendant filed answer to plaintiff's motion to modify, opposing said modification, and a cross-bill to modify the original decree of divorce by changing custody of the minor children from plaintiff to the defendant and to further modify said decree by setting aside and vacating the order and decree awarding defendant alimony in monthly instalments of $250 and to enter judgment for alimony in gross or partial alimony in gross and instalments; and for a judgment and decree for money for support and maintenance of minor children.

On January 12, 1956, defendant filed a motion for suit money and attorney fees. This motion alleged that plaintiff had filed motion to modify the original decree of divorce in October, 1955; that defendant had filed answer and cross-motion objecting to the modification of said decree as requested by plaintiff and asking the court to modify said divorce decree by awarding custody of the minor children to her and by changing the decree awarding monthly alimony for her support to a decree awarding alimony in gross and for a judgment for support for the minor children.

This motion alleged that plaintiff is possessed of a large amount of real estate and personal property of the value in excess of $500,000; that $250 per month alimony awarded her in the decree, is insufficient for her support and that she has no other means of support and no money with which to pay the expenses of this litigation and for attorneys to represent her. The motion alleges that it will be necessary to make investigations in Oklahoma and to take depositions.

On March 13, 1956, interrogatories were filed by defendant which are now pending and unanswered. On March 22, 1956, plaintiff filed objections to the interrogatories. On April 21, 1956, plaintiff filed answer to defendant's motion for suit money and attorney fees. Prior to the hearing of the motion for suit money and attorney fees, plaintiff dismissed his motion to modify.

The answer alleged that the allegations in defendant's motion for attorney fees and suit money relating to alimony should not be allowed because the court has no jurisdiction to modify the decree as to alimony; that the divorce decree awarding defendant alimony for her support and maintenance was the result of contract between the parties, which was recognized by the court and does not represent a judgment which is subject to modification.

The answer denied that plaintiff is the owner of real and personal property as alleged and that his income is any greater than it was when the original decree was entered but does admit that plaintiff is able to pay reasonable attorney fees upon proof of the services to be rendered defendant for trial of the issues before the court.

Defendant testified that she lived in a rented house in Joplin, and pays a monthly rental of $50; that she is now receiving $250 per month alimony from plaintiff; that she has no other income from any source and that, after she pays her monthly bills, she has no money left.

She testified that she was requested by her attorneys for retainer fee in this action but was unable to pay the same; that she tried to raise the money but could not do so, either by borrowing or in any manner whatsoever. She testified that although she was in good health she was unable to find employment for the reason she was not qualified to hold a job.

Witness said she did not receive the $1,000 alimony mentioned in the decree or the $350 a month; that $75 of this amount went for payments on a car. When asked if she were unable to live on $250 a month, she testified 'That's right'.

As to the custody of the children, defendant testified that at the time of the divorce, she had no place to keep them and was unable to take custody thereof; that she now lived in an 8-room house and was amply able to care for them.

Defendant called plaintiff as a witness. He testified he was employed by Tri-State Warehousing and Distributing Company at a salary of $3,200 per month; that he owned 25% of the stock in said business, which was sold for $1,200,000; that he received approximately $300,000 for his stock subject to tax; that he owned a home in Joplin of the value of some $20,000 or $25,000, subject to mortgage, and since the sale of his stock had purchased some other real estate. He stated his net income for 1955 after the payment of taxes was about $7,300.

In our opinion we will refer to appellant as plaintiff and respondent as defendant, the position they occupied in the original divorce action.

On appeal it is first contended by plaintiff that the judgment is unsupported by evidence showing the time required, or of the kind and extent of services defendant's counsel would be required to prosecute her cross-motion. Secondly, it is contended that the record evidence shows the allowance to be excessive, arbitrary and unreasonable and...