Kelly v. Kelly

• Decision Date: 21 December 1928
• Docket Number: No. 4549.,4549.
• Citation: 11 S.W.2d 1107
• Court: Missouri Court of Appeals
• Parties: KELLY v. KELLY.

11 S.W.2d 1107

KELLY v. KELLY.

No. 4549.

Springfield Court of Appeals. Missouri.

December 21, 1928.

Appeal from Circuit Court, Lawrence County; Chas. L. Henson, Judge.

Action by Annie Kelly against E. O. Kelly. Judgment sustaining demurrer, and plaintiff appeals. Reversed and remanded.

M. O. Morris, of Mt. Vernon, and D. S. Mayhew, of Monett, for appellant.

Neale & Newman, of Springfield, for respondent.

BRADLEY, J.

This is an independent common-law action by a divorced wife to recover for necessaries furnished to minor children of the marriage. A demurrer to the petition was sustained, and plaintiff appealed.

From the petition it appears that plaintiff and defendant were married November 23, 1887; May 29, 1913, they were divorced on the petition of the husband, defendant here; that plaintiff was awarded the custody of the two minor children, George and Hattie, for whose support and maintenance plaintiff seeks recovery; that no order as to maintenance was made; that a prior suit was commenced by plaintiff against her former husband for expenses incurred in the support and maintenance of the two children, but that said suit was compromised; that the compromise settled all claims prior to September 20, 1915. Plaintiff further alleges that the support and maintenance furnished said minors prior to their becoming of age and subsequent to September 20, 1915, exclusive of medical attention, was of the reasonable value of $1,680. Plaintiff further alleges that after September 20, 1915, and prior to the time said children became of age, she paid out for necessary medical attention for said children the sum of $800. It is further alleged that the $2,480 for the support, maintenance, etc., became due August 25, 1917, and that on said date plaintiff demanded payment of defendant and many times thereafter made demand; and that on October 10, 1923, defendant paid her on said account and demand the sum of $100, but has failed and refused to pay the balance due. Judgment is asked for the alleged balance, with interest at 6 per cent. from August 25, 1917.

The substance of the demurrer is that plaintiff cannot maintain a separate common-law action for the support and maintenance furnished by her for the minor children, and it was on this ground that the demurrer was sustained.

It is contended by defendant that the rule in this state is that the court granting the divorce and awarding custody of minor children retains the exclusive jurisdiction both as to custody and maintenance, and that a separate and independent common-law action for maintenance past or future cannot be maintained. As supporting this contention, defendant relies upon sections 1806 and 1812, R. S. 1919; Laumeier v. Laumeier, 308 Mo. 201, 271 S. W. 481; Conrad v. Conrad (Mo. App.) 296 S. W. 196; Thornton v. Thornton (Mo. App.) 2 S.W.(2d) 821; In re Morgan, 117 Mo. 249, 21 S. W. 1122, 22 S. W. 913; In re Krauthoff, 191 Mo. App. 149, 177 S. W. 1112. On the other hand, it is contended by plaintiff that, as to maintenance already furnished, the divorced wife to whom the custody of minors has been awarded without provision for maintenance may maintain a separate and independent commonlaw action against the father to recover the reasonable value for past maintenance. The following cases support plaintiff's contention: Angel v. Angel, 220 Mo. App. 360, 285 S. W. 1035; Gallion v. McIntosh (Mo. App.) 8 S.W.(2d) 1076; Auer v. Auer (Mo. App.) 193 S. W. 926, loc. cit. 929; Winner v. Shucart, 202 Mo. App. 176, 215 S. W. 905; Kinsolving v. Kinsolving (Mo. App.) 194 S. W. 530; Bennett v. Robinson, 180 Mo. App. 56, 165 S. W. 856; McCloskey v. McCloskey, 93 Mo. App. 393, 67 S. W. 669; Rankin v. Rankin, 83 Mo. App. 335; Lukowski v. Lukowski, 108 Mo. App. 204, 83 S. W. 274; Seeley v. Seeley, 116 Mo. App. 362, 91 S. W. 979; Chester v. Chester, 17 Mo. App. 657; La Rue v. Kempf, 186 Mo. App. 57, 171 S. W. 588.

No purpose could be served by attempting to review the conflicting opinions on the question here presented. The cases relied upon by plaintiff, as supporting her contention that a separate and independent common-law action will lie for past support of the minors, were ruled without consideration of the statute. Sections 1806 and 1812, R. S. 1919. In Laumeier v. Laumeier, 308 Mo. 201, 271 S. W. 481, referred to, supra, the Supreme Court en banc reviewed generally the prior rulings in this state that a divorced wife to whom the custody of minors was awarded in divorce could maintain a separate and independent common-law action against the father to recover for past support of such minors. As we construe, it is ruled in the Laumeier Case that such independent common-law action cannot be maintained during the minority of the minor or minors, but that at least during the minority of the children concerned recovery for their support, past or future, must be had in the court where the divorce proceedings were had and in the original cause by motion or petition to reopen for the relief sought.

In the Laumeier Case, 308 Mo. 223, 271 S. W. 487, the court, speaking through White, J., said: "Thus we see that whenever the effect of our statute is taken into consideration, the courts of this state have held that the jurisdiction to make orders affecting the custody or maintenance of children of a divorced pair remains in the divorce court, and in this state an action will not lie in any other court. Under these rulings, if the plaintiff, Byrd Shoemaker, had brought suit against her former husband to recover for money expended in the maintenance of her minor child in this state, in any other county or in any other court than the circuit court of the city of St. Louis where the decree of divorce was rendered, we would have to hold that the court where she brought suit had no jurisdiction."

But there is a feature of the cause at bar which we think distinguishes it on the facts from any of the cases dealing with the question at hand so far as we are able to ascertain, and that feature is that, in the cause at bar, the minors for whose past support recovery is sought became of age prior to the filing of this cause. The reason assigned, when any reason is given, in the cases holding that a divorced wife, to whom the custody of minors has been awarded in divorce, cannot maintain a separate and independent common-law action against the father for the support and maintenance, past or future, of the minors, is that during the minority of the minors the court which granted the divorce retains the exclusive jurisdiction of all questions of custody and maintenance of the minors during their minority. The Kansas City Court of Appeals, in Thornton v. Thornton, supra, after quoting from sections 1806 and 1812, R. S. 1919, said: "These statutes clothe the court adjudging a divorce with jurisdiction to make provision for the care, custody, and maintenance of minor children of the divorced pair and to alter such provisions from time to time thereafter. In the instant case the decree of divorce made no reference to the maintenance of the minor children, but it did award their custody to the mother, and, under the terms of the statute, the court granting the decree may review or alter such award at any time during the minority of such children. It necessarily follows that such court retains jurisdiction of the case until such children reach their majority, otherwise the court would be powerless to review or alter its original order after the term at which it was made." (Italics ours.)

In Conrad v. Conrad (Mo. App.) 296 S. W. 196, loc. cit. 197, the court, in discussing a question of custody, said: "It need scarcely be said that by reason of the decree of divorce having been granted to plaintiff from defendant, the minor child involved in this litigation became a ward of the circuit court of St. Louis county; that jurisdiction to award the custody of such child vested in that court to the exclusion of all others; that such jurisdiction is a continuing one until such time as the child attains its majority; and that by reason thereof the court retains power to modify its decree from time to time regarding the custody of the child as new conditions may arise and circumstances change to make a modification thereof necessary." (Italics ours.)

The portions of sections 1806 and 1812, R. S. 1919, pertinent here, are as follows:

"Sec. 1806. When a divorce shall be adjudged, the court shall make such order touching the * * * care, custody and maintenance of the children, * * * as, from the circumstances of the parties and the nature of the case, shall be reasonable. * * * The Court, on the application of either party, may make such alteration, from time to time, as to the allowance of alimony and maintenance, as may be proper. * * *"

"Sec. 1812. There may be a review of any order or...