Jourdan v. Jourdan

• Decision Date: 16 September 1952
• Docket Number: No. 28410,28410
• Citation: 251 S.W.2d 380
• Parties: JOURDAN v. JOURDAN.
• Court: Missouri Court of Appeals

Page 380

251 S.W.2d 380

JOURDAN v. JOURDAN.

No. 28410.

St. Louis Court of Appeals, Missouri.

Sept. 16, 1952.

R. C. Reis, Ernest E. Baker, St. Louis, for appellant.

Cecil Block, St. Louis, for respondent.

RUDDY, Judge.

This is an appeal by the wife from the ruling and order of the Circuit Court of the City of St. Louis sustaining a motion of the husband to modify a decree of divorce. The husband in his motion filed April 26, 1951, prayed for an order 'modifying and decreasing the weekly alimony allowance to the plaintiff' (wife). The Circuit Court in its ruling on the motion ordered that defendant (husband) 'be relieved of making any further payment as and for alimony, to plaintiff,' and further ordered 'that plaintiff have and recover of the defendant, as and for the support and maintenance of minor child Donald, the sum of $60.00 per month.'

The record discloses that the wife on April 12, 1948, was granted a decree of divorce and that said decree provided that the husband pay the wife the sum of $10 per week for the support and maintenance of Donald, then one year of age, and the sum of $15 per week as alimony for the wife. The husband remarried on April 15, 1948. In his motion to modify he alleges that since the original decree was entered the circumstances of the parties have changed, in that the wife has secured gainful and steady employment and is self-sustaining and that he has remarried and that two children were born of this second marriage; that as a result of his remarriage and the birth of the two children he is under a financial hardship and cannot adequately provide for his present family. Subsequent to the filing of the husband's motion to modify, the wife filed the following affidavit:

'I, Margaret Louise Jourdan, being duly sworn, depose and say that under the terms of an order for alimony pendente lite in Cause No. 12681, in the Circuit Court of the City of St. Louis, dated October 16, 1947, the defendant, Ray McDonald Jourdan, was ordered to pay the plaintiff $100.00 a month, and that this order remained in force until a Divorce Decree was granted on April 12, 1948; that according to the terms of the decree entered on April 12, 1948, the defendant was to pay the plaintiff the sum of $25.00 a week for the support of a child and alimony; that this order remains in force at this time; that plaintiff has received from the defendant the sum of $2483.00, and that there is due on this date, from the defendant, the sum of $2067.00.

'Margaret Louise Jourdan

Plaintiff.

'Sworn to and subscribed before me this 30 day of April, A.D. 1951.

'My commission expires May 3rd, 1952.

(SEAL)

'S. Renzenhausen,

Notary Public.'

It is admitted that the amount in arrears set out in the affidavit is correct. The husband contends that the arrearage is for alimony only and that no part of it is for the child's support.

The testimony at the hearing showed that at the time of the rendition of the original decree the wife was unemployed and the husband was employed by the Lakewood Flying Service as a private flyer. He said he was earning $450 per month at that time. His wife said that at the time of the divorce she had a letter from the husband's employer, in which the employer advised her that he was making $266 per month. There was no objection to this testimony and it was elicited by the husband's attorney on cross-examination.

The testimony further showed that at the time of the hearing on the motion to modify the husband was a First Lieutenant in the United States Air Force earning a 'take home pay' of $510 per month; that he had no other source of income and owned no stocks or bonds, but did have a 1948 Chrysler automobile, purchased in the name of his second wife, paid for out of his funds, and a house trailer that cost him $4,500. The house trailer was damaged in an airplane accident and the United States Government paid him $3,300 for the damages sustained and he repaired the trailer, thus reducing the cost of the trailer to him. His family has supplemented his income in amounts up to $250 for a total of $1,000. This sum advanced by them he considered a gift.

The testimony showed the following as his monthly expenses at the time of the hearing: food and entertainment $150; clothes $30; clothes for the children $20; medical and dental $20; life insurance $20; mandatory social activities $20; insurance on household goods $10; operation of automobile $75 and parking charge for house trailer $6. These monthly expenses total $351.

The testimony further showed that he is a base communication officer and claims it is necessary for him to travel forty or fifty miles a day in his car; that the oldest of the two children born of the second marriage is 27 months of age and the youngest is 3 months of age. The husband, when pressed in his cross-examination for the cost of raising the two children, testified that the cost of 'supporting the two children' was $20 a month. We assume from the term 'support' he meant all costs except the children's clothing. This item added to the cost of clothes for the children would give a total expense of $40 per month for raising the two children.

The testimony also shows that the wife was employed at the time of the hearing and was receiving $71.36 'take home pay' every two weeks. Her first employment after the divorce was in November 1949 at Famous-Barr Company. When questioned on cross-examination about the amount of time devoted to the Famous-Barr Company position she said: 'It was full time. I went with the idea of working for money for Christmas so my child would have something, and they kept me on, and I stayed.' Her minimum monthly expenses aggregated $165. This amount included $2 per day she had to pay a lady for taking care of Donald while she attended her employment.

In such a case as this it is the practice of the appellate courts to review proceedings therein de novo and determine the rights and justice of the matters in question, and whether the law has been properly applied by the trial court to the facts in the case and places upon the appellate court the duty of making its own finding of facts and conclusions of law. Bowzer v. Bowzer, 236 Mo.App. 514, 155 S.W.2d 530; Couplin v. Couplin, Mo.App., 121 S.W.2d 186. It is also the rule, which has long been established and applied in many decisions of our court, that an appellate court should not interfere with the findings and conclusions of the trial judge, unless, there has been a manifest abuse of judicial discretion by the trial judge. Shapiro v. Shapiro, Mo.App., 238 S.W.2d 886; Eaton v. Eaton, Mo.App., 237 S.W. 896.

We begin with the recognition that judgments for alimony from year to year or month to month are subject to the same incidents as judgments in other actions at law and like them are res adjudicata as to all conditions or facts existing at the date of their rendition. Nelson v. Nelson, 282 Mo. 412, 221 S.W. 1066; Eaton v. Eaton, supra. Because of the foregoing rule it has been consistently held by our courts that authority for the modification of a judgment for alimony is dependent on a change in the circumstances of the parties between the time the judgment was entered and the time the motion for modification was filed. Shapiro v. Shapiro, supra; Schulte v. Schulte, Mo.Sup., 140 S.W.2d 51. In this case the husband has the burden of showing such a change in conditions as will justify the modification of the original decree of divorce. Seigfreid v. Seigfreid, Mo.App., 187 S.W.2d 768.

We are without the benefit of a brief from the husband but it is obvious from the reasons given in his motion to modify the decree of divorce and from his testimony at the hearing that his wife's employment and his remarriage, with the subsequent birth of two children, are the changed circumstances relied on to uphold the trial court's order of modification. The first circumstance we will take up is his remarriage and the subsequent birth of the two children. In an analysis of...