Kinney v. Kinney

• Decision Date: 23 May 1921
• Docket Number: No. 14016.,14016.
• Citation: 231 S.W. 267
• Parties: KINNEY v. KINNEY.
• Court: Missouri Court of Appeals

231 S.W. 267

KINNEY v. KINNEY.

No. 14016.

Kansas City Court of Appeals. Missouri.

May 23, 1921.

Appeal from Circuit Court, Jackson County; C. A. Burney, Judge.

"Not to be officially published."

Petition by Louise Kinney against Louis Kinney. Decree for plaintiff, defendant moved to modify the decree fixing alimony at $125 per month, on hearing it was reduced to $60 per month, and defendant appeals. Affirmed.

Stubbs & Stubbs, of Kansas City, for appellant.

Burns & Watts, of Kansas City, for respondent.

BLAND, J.

On May 4, 1918, plaintiff filed in the circuit court of Jackson county, Mo., a petition for divorce. After alleging five grounds for divorce, and that one male child of the age of one year had been born of the marriage, plaintiff ended the petition with the following prayer:

"Wherefore plaintiff prays the court for a divorce from the bonds of matrimony contracted as aforesaid, for the custody of said minor child, and for such other and further relief under the premises as may be just and proper, and for her costs."

Service was had upon defendant, but he made default. On May 12, 1910, the court entered judgment, granting plaintiff the divorce, giving her the custody of the minor child, and awarding her alimony in the sum of $125 per month. On August 26, 1919, defendant filed a motion to modify the decree, in so far as it fixed the amount of alimony, and upon a hearing of said motion the court reduced the alimony to $60 per month. Defendant has appealed, alleging that the amount last fixed by the trial court is excessive.

The facts show that plaintiff and defendant were married on July 13, 1916, that they lived together as husband and wife until January 1, 1918, and that there was born of the marriage a son, who, at the time of the hearing of defendant's motion, was 2½ years of age. Defendant has never paid any alimony, but plaintiff has been living with her mother, who supports her and her child; plaintiff's father and mother being separated. The mother has some private means, the amount of which is not given in the evidence. Plaintiff's health was good prior to her marriage, but at the time of the trial it was very poor. She had made no attempt to obtain employment, not being able to do hard work. Neither plaintiff nor defendant owned any property.

About two weeks before the hearing of defendant's motion he remarried. At the time of the trial on his motion he was employed by his father, who was in the cigar business, at a salary of $125 per month and expenses while on the road. He and his wife lived with his parents, paying no board. His father had advanced to him quite a sum of money since his marriage to plaintiff, some of which is expected to be returned. The amount expected to be returned is approximately. $4,000, which was charged on the father's books against defendant. This indebtedness arose since defendant's marriage to plaintiff, and was for debts created for their living expenses and money advanced toward the maintenance of defendant, plaintiff, and their child while defendant was in the army.

Defendant had been working for his father for five months prior to the trial on the motion, and during that time he had paid about $100 on the indebtedness owing to his father. Defendant at one time had money with which he could have paid his father in part, but paid other debts with it. The father testified that the arrangement he had with his son for the repaying of the indebtedness was "whatever less than his salary he draws, the balance is credited on the indebtedness." It appears that defendant's parents are persons of some means, and the father evidently permits him...