Kinsolving v. Kinsolving

• Citation: 194 S.W. 530
• Decision Date: 24 April 1917
• Docket Number: No. 1930.,1930.
• Parties: KINSOLVING v. KINSOLVING.
• Court: Missouri Court of Appeals

194 S.W. 530

KINSOLVING v. KINSOLVING.

No. 1930.

Springfield Court of Appeals. Missouri.

April 24, 1917.

Appeal from Circuit Court, Mississippi County; Frank Kelley, Judge.

Action by I. V. Kinsolving against Flyod Kinsolving. From a judgment for plaintiff, defendant appeals. Cause reversed and remanded, with directions to enter judgment for plaintiff.

Lew R. Thomason, of Poplar Bluff, for appellant. J. L. Fort, of Dexter, for respondent.

STURGIS, J.

Plaintiff and defendant were husband and wife from the date of their marriage in 1886 until the defendant husband procured a divorce on May 22, 1902. The decree awarding a divorce to this defendant also awarded the custody of their three minor children to this plaintiff. No provision was made by the decree for the support of such minor children. The present suit is by the wife against her divorced husband to recover the reasonable value of the support, maintenance, and education of such minor children by her after such divorce. The defendant admits in his answer the marriage, divorce, and award of custody of the children to the wife, and by his evidence admits that the wife had supported, maintained, and educated them after the divorce decree. His defense, set forth in the answer, is to the effect that at the time the divorce was granted an outside agreement was made by which he paid plaintiff $2,500 for the purpose of supporting the minor children and that he was to be relieved of that burden. He also pleaded the five-year statute of limitation in bar of plaintiff's claim. The plaintiff had judgment and defendant appeals.

That the husband and father remained liable for the support, maintenance, and education of his minor children after the divorce and award of their custody to the wife is settled law. The court should, at the time of granting the divorce, make suitable provision by its order for the future support of the minor children, the custody of whom is awarded to the mother. If the court fails to do so at that time, it is yet within its power and duty on proper motion, in and as part of the divorce proceeding, to make such order at any later time on due notice to the husband. Such an order and provision relates, of course, to the support of the minor children subsequent to the making of such order. Robinson v. Robinson, 168 Mo. App. 639, 154 S. W. 162; Robinson v. Robinson, 268 Mo. 703, 186 S. W. 1032. These decisions clearly establish defendant's liability for the support of his children, notwithstanding his divorce and the award of their custody to the wife. See, also Lukowski v. Lukowski 108 Mo. App. 204, 209, 83 S. W. 274, and cases cited. In another suit between those same parties (Bennett v. Robinson, 180 Mo. App. 56, 165 S. W. 856), this court expressly held that the divorced wife, to whom the court awarded the custody of minor children without providing for their support, and who had in fact supported them, could maintain an independent suit against her former husband for the reasonable value of such support.

The evidence in the present case on plaintiff's part related to the value of plaintiff's support of the three minor children. The plaintiff sued on three counts, each covering the support of a named child. It was shown that one child, a girl, had been married more than five years prior to the bringing of this suit, and plaintiff, conceding that the cause of action as to this child was barred by limitation, abandoned and remitted any recovery on that count. Defendant makes no point as to the statute of limitation on the other two counts, which alone are before this court.

The evidence fails to sustain the defense that the $2,500 paid to plaintiff on the granting of the divorce was for the support of the children and relieved defendant of that burden. On this point defendant testified:

"Q. Now, then, you say there was an agreement between your attorneys and her attorneys by which she was to accept this $2,500 in full payment of everything coming from you to her, and she was to support the children out of it? A. That is not the correct statement. Q. All right, let us have it? A. The agreement was, upon payment of $2,500 for maintenance, there would be no further suits in court. Q. What agreement was made about the support of the children? A. I should be left to support the children as I saw fit. Q. And you didn't see fit to support them at all? A. Yes, sir."

The plaintiff testified that this sum was paid to her for alimony, the idea evidently being that it was for her own support and maintenance. The agreement, if any, was made through the attorneys for the respective parties in the divorce case, and the only attorney testifying said that the only agreement made was that on payment of $2,500 the plaintiff, defendant here, should have a divorce, and the defendant, plaintiff here, should have the custody of the children; that the $2,500 paid by this defendant was for this plaintiff, Mrs. Kinsolving. The opinion in the case of Robinson v. Robinson, 268 Mo. 703, 186 S. W. 1032, distinctly held that money paid by the husband to the wife as alimony—that is, for her own support and maintenance, in view of the divorce being granted—is not to be regarded as in lieu of his obligation to support his minor children. Lukowski v. Lukowski, 108 Mo. App. 204, 209, 83 S. W. 274.

It would, of course, make no difference whether money so paid was compulsory, as alimony duly allowed, or voluntarily paid by the husband, on the granting of the divorce. Moreover, the court submitted this issue to the jury on an instruction drawn...