Lodahl v. Papenberg
| Decision Date | 11 April 1955 |
| Docket Number | No. 44462,No. 1,44462,1 |
| Citation | 277 S.W.2d 548 |
| Parties | Hallie Gail LODAHL, Appellant, v. Russell PAPENBERG, Respondent |
| Court | Missouri Supreme Court |
J. Grant Frye, Cape Girardeau, for appellant.
Frank W. Jenny, James A. Cole, Union, for respondent.
VAN OSDOL, Commissioner.
In this action, instituted in the Circuit Court of Franklin County, Hallie Gail Lodahl, plaintiff, formerly the wife of Russell Papenberg, defendant, seeks the recovery of $8,700 for expenditures by her for the support of Marilyn Gay Papenberg, the minor daughter of the parties, plaintiff and defendant, who were divorced in 1943, which expenditures were allegedly made by plaintiff from and after December 21, 1945. The trial court acting on defendant's motion dismissed plaintiff's petition and she has appealed from the judgment of dismissal.
The decree of divorce was rendered by the Circuit Court of the City of St. Louis, March 11, 1943, and other and subsequent orders were entered by that court modifying the decree, which modifying orders were entered August 6, 1943, December 21, 1945, and December 6, 1946.
Plaintiff in her petition stated the substance of the original decree and of subsequently entered modifying orders, and alleged that on December 21, 1945, the decree was modified 'releasing defendant from the payments of any support and maintenance for the said Marilyn Gay' and the other two minor children. Plaintiff further alleged that since December 21, 1945, defendant has not 'in any wise contributed to the necessaries of life acquired for' the child Marilyn Gay; and that plaintiff has 'furnished food, clothing, shelter, medical attention, entertainment education, and all other necessaries of life for said Marilyn Gay and defendant has refused to pay any of such or reimburse plaintiff for it.'
Defendant in his motion to dismiss stated as grounds therefor that the Circuit Court of Franklin County did not have jurisdiction of the subject matter of the instant claim; that the Circuit Court of the City of St. Louis, in which the decree of divorce was granted, had and has jurisdiction of the instant action; and that the claim in this action stated 'has been asserted by the action' for divorce in the court in which the divorce was granted. By this we understand defendant meant the matter of defendant's liability for the support and maintenance of the child Marilyn Gay had been adjudicated by the Circuit Court of the City of St. Louis. The motion also stated the substance of the divorce decree and the subsequent modifying orders.
The trial court heard evidence introduced by defendant in support of defendant's motion to dismiss. The evidence so introduced consisted of certified copies of the divorce decree and the several modifying orders which decree and orders were in substance as follows,
By a decree of March 11, 1943, rendered in the Circuit Court of the City of St. Louis, plaintiff was granted a divorce and the care, custody and control of Russell Joseph, seven years old, Raymond Albert, four years old, and Marilyn Gay, three years old, the minor children of the parties. In the decree it was further ordered that plaintiff should have and recover of defendant 'as and for the support and maintenance of each of said minor children the sum of $8 per week, until the further order of the Court, * * *.'
August 6, 1943, pursuant to a stipulation of the parties on that day filed and approved by the court, the divorce decree was modified so that from the date thereof the plaintiff should 'have and recover of the defendant, as and for the support and maintenance of the three minor children, * * * the sum of $62 per month, until said defendant is discharged from the Armed Services of the United States or until the further order of the Court, in lien of the original award of $8 per week, for each child, * * *.'
December 21, 1945, the decree of divorce as modified on August 6, 1943, was further modified, so that from the date thereof 'the defendant shall be released of the payment of $62 per month for the support and maintenance of minor children Russell, Raymond and Marilyn, and that from this day forthwith said payments shall cease and determine, until the further order of the Court.' And it was further ordered that 'in all other respects the original decree of divorce and as subsequently modified, remain in full force and effect, * * *.'
December 6, 1946, the court heard and considered a motion, filed by plaintiff, to modify the decree and overruled the same; and the court heard and considered defendant's motion to modify the decree, and ordered that the motion be sustained, 'and doth further order that the decree of divorce rendered herein on the 11th day of March, 1943, * * * and as modified on the 6th day of August, 1943, * * * and as further modified on December 21st, 1945, * * * be further modified, so that from the date hereof the defendant shall have the care, custody and control of Russell Joseph and Raymond Albert, only, until the further order of the Court.' And it was further ordered by the court 'that in all other respects the original decree of divorce and as subsequently modified, remain in full force and effect, * * *.'
It is provided by statute that, when a divorce is adjudged, the court shall make such order touching the care, custody and maintenance of a child, as, from the circumstances of the parties and the nature of the case, is reasonable. Section 452.070 RSMo 1949, V.A.M.S.
A father has the primary common-law duty and obligation to support his minor children, regardless of whether there is in force a valid order of court requiring him to do so. The order contemplated by the statute, Section 452.070, supra, is a determination of the father's liability for the support of the minor child and the order and judgment are in effect a substitution for the father's common-law liability which would otherwise exist. Robinson v. Robinson, 268 Mo. 703, 186 S.W. 1032; Gardine v. Cottey, 360 Mo. 681, 230 S.W.2d 731, 18 A.L.R.2d 1100. In the Gardine case it was said the apparent purpose of the statute is to provide a mode of procedure for obtaining maintenance of the child and for determining in advance the extent of the common-law obligation of the father, as well as to provide the means of enforcing the obligation. The simplified...
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