Knebel v. Knebel
| Decision Date | 18 September 1945 |
| Docket Number | No. 26838.,26838. |
| Citation | 189 S.W.2d 464 |
| Parties | KNEBEL v. KNEBEL. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court, Joseph J. Ward, Judge.
"Not to be reported in State Reports."
Action by Wimar L. Knebel against Mildred Knebel for a divorce, charging indignities, wherein defendant filed a cross-bill seeking divorce on the same grounds. On the trial plaintiff dismissed his petition, defendant was granted a divorce on the cross petition, and from that part of the decree disallowing claim for permanent alimony, defendant appeals, and plaintiff moves to dismiss the appeal.
Motion to dismiss the appeal overruled, and judgment affirmed.
Edwin A. Smith, of St. Louis, for appellant.
Paul J. Kaveney, of St. Louis, for respondent.
BENNICK, Commissioner.
This is an action for divorce which was instituted by the husband, Wimar L. Knebel, against his wife, Mildred Knebel.
Plaintiff's petition charged indignities, and prayed a divorce from the bonds of matrimony which had been contracted between the parties on May 29, 1943.
Admitting the marriage, defendant denied each and every other allegation contained in the petition, and then followed with a cross bill in which she alleged that from and after the date of the marriage, she and plaintiff had lived together as husband and wife until February 14, 1944; that during all of such time she had faithfully demeaned herself, and had discharged all of her duties as plaintiff's wife, and had at all times treated him with kindness and affection; but that plaintiff, wholly disregarding his duties as her husband, had from the outset of the marriage subjected her to such indignities as to render her condition in life intolerable.
Specifically, she alleged that plaintiff was of a nagging disposition, and had constantly found fault with and criticized her, all without just cause or excuse; that he was possessed of a violent temper, causing him to manifest the most violent wrath and hatred towards her, and to strike her on numerous occasions; that he had frequently used profane and abusive language towards her, both in public and in private; and that he had been cold and distant towards her, had stated on numerous occasions that he no longer loved her and wished he was rid of her, and in fact had ordered her to leave their home on February 14, 1944.
Defendant further alleged that on May 7, 1944, plaintiff came to where she was then residing and pleaded with her to return home under promise that if she would do so, he would treat her as a husband should, and not as he had formerly done.
With this understanding, so defendant alleged, she did return home, but only to be met with further indignities.
She then alleged that near midnight on the night of May 12th, after she had retired to bed, she heard some one open the front door of their residence, and thinking it was plaintiff, she called to him, but received no response. She then got out of bed, and to her amazement found a certain woman in the living room, who had gained entrance into the house by means of a key previously given her by plaintiff. The woman became very abusive towards defendant, and was only prevailed upon to leave after plaintiff had been called home from his place of employment. The same woman subsequently called their home over the telephone, and about 2 a.m. on the night of May 15th, she and her sister appeared at the door and demanded admittance. Plaintiff finally admitted them, whereupon the woman became abusive towards both plaintiff and defendant, and stated that she had lived in the house with plaintiff during the period of his separation from defendant. In the course of the argument that ensued after the woman left, plaintiff struck defendant with great force and violence, in consequence of which she had him arrested, and on May 23, 1944, he was fined $50 and costs in City Court No. 2 of the City of St. Louis. Defendant finally alleged that she had not returned to plaintiff's home since the date of plaintiff's conviction.
The prayer of the cross bill was that defendant be awarded a decree of divorce with the restoration of her maiden name; that the court allow her such support and maintenance as the nature of the case and the circumstances of the parties might require; that she be allowed permanent alimony; and that her attorney be allowed a reasonable fee for representing her both in the divorce action and in connection with plaintiff's prosecution in City Court No. 2.
When the case came on for trial, plaintiff dismissed his petition, leaving the case to be heard upon defendant's cross bill and plaintiff's general denial to the allegations therein contained.
After hearing the evidence, the court, having found that defendant was the innocent and injured party, awarded her a divorce from the bonds of matrimony existing between her and plaintiff, and ordered the restoration of her maiden name. However, notwithstanding the finding in defendant's favor upon the question of her right to a divorce, the court disallowed her claim for permanent alimony, but did direct that she have and recover from plaintiff the sum of $200 as an additional attorney's fee.
Being dissatisfied with the decree in so far as it denied her prayer for permanent alimony, defendant filed a motion for a new trial; and this being subsequently overruled, she applied for and was granted an appeal to this court.
It seems to be undisputed that some eighteen days after the decree had become final upon the entry of the order overruling defendant's motion for a new trial, plaintiff's attorney sent defendant's attorney his personal check for the sum of $200 in satisfaction of the item of the decree allowing such an amount as an additional attorney's fee. Defendant's attorney accepted and cashed the check; and now by reason of such action, plaintiff has filed his motion to dismiss the appeal upon the ground that, having accepted the benefit of the decree in respect to the allowance of the additional attorney's fee, defendant has acquiesced in the decree, and is estopped by law from appealing from it.
Defendant opposes the motion upon two grounds, the first, that the particular allowance was not to her but to her attorney, and that his subsequent acceptance of the fee from plaintiff's attorney could not have worked an estoppel against her to prosecute an appeal from the decree in so far as she was personally aggrieved by it; and second, that the question of the allowance of an additional attorney's fee was never in dispute between the parties, so that, regardless of the fact that the fee was paid and the decree satisfied in that respect, she is not thereby precluded from bringing up her appeal for the purpose of having the decree reviewed as to any matter which had been in contest.
We cannot agree with defendant upon the first of the grounds which she advances in opposition to the motion to dismiss her appeal.
The court's authority to award suit money is derived from the fact that such an allowance falls within the broad category of alimony pendente lite, being alimony in the sense that it is allowed for the purpose of defraying the ordinary and necessary expenses of the wife in respect to her prosecution or defense of the action for divorce. Waters v. Waters, 49 Mo. 385. Thus so far as statutory authority is concerned, the power to allow suit money is to be found in the provision that "the court may decree alimony pending the suit for divorce in all cases where the same would be just, whether the wife be plaintiff or defendant". Sec. 1519, R.S.Mo.1939 Mo.R. S.A. § 1519. It follows, therefore, that an award of suit money is the allowance of alimony to the wife, and cannot be authorized or sustained upon any other basis. It is not an allowance to the wife's attorney, who is not a party to the action, and indeed could not become a party in the absence of such a right being accorded him by the statutes prescribing and defining the remedy. Bovard v. Bovard, 233 Mo.App. 1019, 128 S.W. 2d 274. While defendant argues to the contrary the fact is that the decree which was entered in this case did not purport to be in her attorney's favor, but instead provided, as it should have done, that "the defendant" have and recover of the plaintiff, as and for an additional attorney's fee, the sum of $200. The transmittance of the check to defendant's attorney was admittedly in satisfaction of such item of the decree; and the act of defendant's attorney in accepting payment on behalf of his client was no less binding upon defendant than if the terms of the decree had been literally followed and payment had been made directly to her.
But while defendant is wrong in her contention that the award of the additional attorney's fee was not to her but to her attorney, she is right in her suggestion that this particular feature of the case was never in dispute, and that her implied acquiescence in this item of the decree would therefore not bar her from appellate review with respect to any matter actually in contest.
There is of course no doubt of the general rule that when a litigant voluntarily, and with knowledge of all the material facts, accepts the benefits of an order, judgment, or decree, he cannot afterwards take an appeal in order to reverse it. This for the reason that the right to proceed on a judgment and enjoy its fruits, and the right to attack it on appeal, are totally inconsistent positions, so that the party's election to pursue the one course must be taken as an abandonment of the other. But this rule has its exceptions, and one exception is that the acceptance of payment, after judgment, of an item which was never in dispute will not thereby preclude the party from appealing as to the items about which there had been a controversy. In such an instance the two positions are not inconsistent, and the acquiescence in the item not in dispute could not suffice to work an estoppel with respect to any other feature of...
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