Link v. Link
| Decision Date | 17 November 1953 |
| Docket Number | No. 28768,28768 |
| Citation | 262 S.W.2d 318 |
| Parties | LINK v. LINK. |
| Court | Missouri Court of Appeals |
Frank Mashak, St. Louis, for appellant.
Sheridan & Goodenough, P. R. Goodenough, Albert E. Hausman, St. Louis, for respondent.
HOUSER, Commissioner.
This is an appeal from an order sustaining a motion to a motion to modify a decree of divorce in respect to the custody of a child.
The mother was granted a divorce on September 30, 1948. The court awarded her $7 per week alimony, custody of the minor child and $8 per week for child support.
On September 6, 1952 the father filed a motion to modify the decree of divorce praying that the alimony award be abated on account of the marriage of the mother and that the custody of the child be changed from the mother to the father.
The mother filed a motion to dismiss (treated at the trial as a motion to stay) the motion to modify on the ground that the father had not paid the mother any alimony; that the father was $945 in arrears on alimony to the date May 3, 1951 when defendant remarried; that the father was in arrears on child support in the sum of $1,430; that plaintiff had paid only $258 of the total amount of $1,688 which had accrued since the order for child support was made. The father replied to the motion to dismiss alleging that from July 20, 1949 to February 15, 1951 the mother and the child lived with him, during which time he supported both of them, and that at all other times the mother had waived alimony. He further denied that he owed anything for child support, excepting three weeks during the steel strike in 1952, and alleged that he had supported the child both while he lived with the mother and afterwards. After a hearing the trial court entered an order sustaining the motion to plaintiff's motion to modify. From that order the father perfected an appeal to this court.
While not challenging the power of the divorce court to deny the ex-husband the right to a hearing on a motion to modify an alimony award until he brings his alimony payments up to date, State ex rel. Couplin v. Hostetter, 344 Mo. 770, 129 S.W.2d 1, appellant urges for his first point that it is not within the power of the divorce court to stay proceedings on a motion to modify the custody provisions of its decree on the ground that movant is in arrears in the payment of the amount awarded for child support. Appellant argues that the paramount concern of the court is the welfare of the child and that the court without delay should brush aside the motion to dismiss or stay, and address itself to the all-important question before it. While it is true that in proceedings of this character technical objections should not be given serious consideration, Sanders v. Sanders, 223 Mo.App. 834, 14 S.W.2d 458, we can find no support for appellant's contention that the court is without jurisdiction to stay the proceedings until the father brings up to date his payments under the child support provisions of the decree. Section 452.070, RSMo 1949, V.A.M.S. authorizes the enforcement of an order of child support by the remedies of execution, sequestration of property, 'or by such other lawful ways and means as is according to the practice of the court.' A divorce case, and its auxiliary procedures, possesses many of the incidents and qualities of an equitable proceeding and Sec. 452.070, supra, gives the court means for enforcement of its decrees which are not usually incident to money judgments. In State ex rel. Couplin v. Hostetter, supra, the ex-husband sought to modify a divorce judgment with respect to the amount of the monthly alimony payments. It was held that the court had the power, as a price for the decree it offers, to require the party who seeks to modify the court's judgment to submit to equitable terms. Accordingly, we rule that the divorce court in its discretion and in a proper case may impose upon the father, as a price for the maintenance of his motion to modify the custody provisions of a divorce decree, the obligation of paying in full all arrearages due under the child support provisions of the decree. In this connection see In re Elmer's Guardianship, 125 N.J.Eq. 148, 4 A.2d 387; Hoagland v. Hoagland, 67 Idaho 67, 170 P.2d 609; Brown v. Brown, 66 Idaho 625, 165 P.2d 886. It should be emphasized, however, that this rule should not be applied peremptorily or in any case where its application would be contrary to the welfare of the child involved. The power to invoke the rule should be exercised sparingly, and only after sufficient inquiry has been made into the status of the child to satisfy the court that the child's best welfare will not be prejudiced.
Next, appellant asks us to review the evidence de novo and reverse the trial court's order on the ground that it is against the weight of the evidence and is not supported by the credible evidence. Appellant testified in person. He had three corroborating witnesses. Respondent's evidence consisted of her own deposition.
The father's case: On the day the custody of the child was awarded to the mother she turned the child over to the father, instructing him to take the child to the home of its paternal grandmother, stating The father took the child and the two lived with his mother at Coldwater, Missouri, where he supported the child, working 'in the timber down there.' During this period he not only sent his wife alimony payments according to the court order, but also for the support of the child, under the belief that he was obligated to pay her $8 per week for child support whether the child was with him or not. The child stayed with him at Coldwater from the time of the granting of the divorce in September, 1948 until February, 1949, when the mother took the child to Bragg City, Missouri. She stayed there until July 17, 1949 at which time the child contracted poliomyelitis. The child was taken to St. Anthony's Hospital in St. Louis. The father, expressing concern about his child, visited her at the hospital on week ends. At the instance of the ex-wife the divorced parties went back together, without having been remarried. They lived together from July, 1949 until February, 1951, during which time he supported his ex-wife and the child, who was receiving treatments at the hospital and at home. On February 11, 1951 the mother took the child, separated from the father, and returned to southwest Missouri. During this separation the father continued to pay her alimony and child support until he received a post card postmarked Gallup, New Mexico, May 3, 1951 in which the mother informed the father that she had remarried. After that time the father no longer sent alimony, but continued to send $8 a week for the support of the child. He next heard from her from a town in California and in telephone conversations with her she first stated that she was and later that she was not married. On September 12, 1951 she wrote from California, 'I do not want anything for myself just help me support her * * *.' As for letting you have her, never * * *.' On March 8, 1952 she wrote from California stating that she was not asking him to help her On July 14, 1952 she wrote to the father stating that he was three weeks behind in the support money. On August...
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