Kleine v. Kleine

• Decision Date: 06 December 1937
• Docket Number: No. 19067.,19067.
• Citation: 111 S.W.2d 242
• Parties: KLEINE v. KLEINE.
• Court: Missouri Court of Appeals

111 S.W.2d 242

KLEINE v. KLEINE.

No. 19067.

Kansas City Court of Appeals. Missouri.

December 6, 1937.

Appeal from Circuit Court, Linn County; Paul Van Osdol, Judge.

"Not to be published in State Reports."

Divorce suit by Dorothy Kleine against A. L. Kleine, Jr. From a judgment on defendant's petition for modification of the original decree, both parties appeal.

Reversed, with directions.

Owen & Thurlo, of Brookfield, for appellant.

G. Derk Green, of Marceline, for respondent.

SHAIN, Presiding Judge.

In this cause, we are asked to review the orders and decrees of the circuit court of Linn county, Mo., which orders and decrees were made in and concerning a petition filed by A. L. Kleine, Jr., asking the court to modify an original divorce decree entered in said court at its October term, 1936, wherein there had been allowed the sum of $100 per month for alimony or maintenance of minor child, to Dorothy Kleine, to whom a decree of divorce had been granted in an action against the said A. L. Kleine, Jr.

The record discloses that the petition of A. L. Kleine, Jr., which was filed and heard in the circuit court of Linn county, Mo., at its February term, 1936, asked modification of the orders touching the allowance on grounds as follows:

(1) That the amount allowed was excessive and out of proportion to his earnings.

(2) Upon alleged grounds of changed conditions, in that said A. L. Kleine, Jr., had since married and had additional expense in way of support of present wife.

(3) That petitioner had taken out and was keeping up life insurance for his minor child in the sum of $2,500 at his own expense.

(4) That an oral understanding between himself and former wife concerning certain debts contracted during period of their marriage had been violated by her.

(5) The petitioner asked changes concerning custody of the minor child to the end of permitting father to visit with said child.

It is shown that the former wife, Dorothy Kleine, filed motion for allowance to defend and that $50 allowance was made.

A hearing was had before the court and, as stated in the record, filed and verified by the record proper, it is shown that the court modified its former decree of allowance by reducing same from $100 per month to $85 per month and ordering that the minor child be produced at the home of A. L. Kleine, its grandfather, to enable the father to visit said child.

Both parties have appealed.

Each of the parties have filed briefs herein. In one of the briefs, A. L. Kleine, Jr., is designated as appellant and Dorothy Kleine as respondent. In the other brief the order is reversed.

In both briefs the assignments of error are principally in the abstract without assignment of reasons. However the nature of the case considered, we conclude it to be our duty to review. In so doing, we cite both parties herein to what this court says concerning the making of assignments of error in Magee v. Hayden, 111 S.W.2d 239, handed down at this October term, 1937, of this court.

Opinion.

We will first consider the appeal taken by A. L. Kleine, Jr.

In his brief there are made four assignments of error that fell so short of requirement of assignment of reason for error claimed that, but for the fact that the public is a party to the question involved, we would with reason refuse to review.

We note that in his brief this appellant abandons entirely the first stated ground in his motion.

This appellant's first complaint is directed at the trial court's refusal to give consideration of increased expenses by reasons of remarriage.

There is no Missouri authority cited and we find no such authority by our research, which declares that the usual expenses of providing a home, food, and clothing for a second wife presents such a change of conditions as to justify a modification of orders for alimony or maintenance for minor child.

As to whether or not a condition might arise out of relationship of remarriage as might justify modification we are not called upon to decide. There is language in the opinion in Lane v. Lane, Mo.App., 17 S.W. 2d 584-586, which somewhat unauthoritatively suggests the possibility of such condition. However the motion under consideration herein certainly pleads no such condition.

The conclusion of this court is, and we so hold, that matters of expenses of furnishing a home, food, and clothes incident to supporting a new wife does not constitute such a change of circumstances or conditions as furnish ground for modifying alimony granted to the former wife or maintenance for minor child.

This appellant in his motion to modify pleads, as a changed condition, expenditure for insurance alleged as taken out in favor of the minor child after the original order was made. We do not find any complaint made of the action of the trial court touching the above. We gather from the record that failure to complain is due to the fact that the only change, since the divorce, was that a policy of $5,000 taken out before the divorce wherein the then wife was beneficiary as to $2,500 and the child as to $2,500 had after divorce and remarriage been changed only in respect to cutting out the first wife and substituting his second wife as beneficiary to the said amount of $2,500.

In his second claim of error, this appellant asserts error in the refusal of the trial court to admit in evidence an alleged oral agreement between this appellant and the respondent in this appeal, his former wife, purported to have been made prior to the divorce concerning payments of some outstanding debts.

No...