Lukowski v. Lukowski
| Decision Date | 15 November 1904 |
| Citation | 83 S.W. 274,108 Mo.App. 204 |
| Parties | LUKOWSKI, Respondent, v. LUKOWSKI, Administrator, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. D. D. Fisher, Judge.
On December 14, 1896, a suit for divorce was brought by Elizabeth Lukowski against her husband Valentine Lukowski. The St. Louis circuit court granted her a decree of divorce and made the following award:
"And it is further ordered and adjudged by the court, and so decreed, that the plaintiff have the custody of Rosa and Stanislaus Lukowski, the children of said parties; that defendant pay to plaintiff the sum of two thousand ($ 2,000) dollars alimony in gross, to be payable when plaintiff executes and delivers to defendant a quitclaim deed for interest in property 1426 and 1428 North Eighteenth street in the city of St. Louis, Missouri; that the plaintiff recover of the defendant her costs and charges herein expended, that execution issue therefor, but that said execution be stayed for fifteen days."
The real estate mentioned in the decree had theretofore been conveyed to Valentine Lukowski and wife for an express consideration of $ 3,250. On January 12, 1897, Elizabeth quitclaimed the property to her former husband, therefore the inference is that the two thousand dollars, allowed her as alimony in gross, were paid at or about that time. About July 7, 1902, Valentine Lukowski died intestate. The administration of his estate passed into the hands of the defendant as administrator de bonis non. Plaintiff presented to the probate court, of the city of St. Louis, a demand against the estate of Valentine Lukowski, deceased consisting of two items: First, an item of $ 298 for furnishing food, clothing, etc., for her daughter Rose for forty-nine and two-thirds months at six dollars per month second, an item of $ 1,334 for maintenance, food, clothing, medicine, etc., furnished her son Stanislaus for sixty-six and seven-tenths months at twenty dollars per month. Both items run from December 14, 1896, the date of the decree of divorce. Her claim was disallowed by the probate court and she appealed to the circuit court where, on a trial de novo, the court allowed her claim for $ 643.45 to be placed in the fifth class of demands against the estate. Defendant appealed.
Judgment affirmed.
J. Hugo Grimm for appellant.
(1) Since our statute (Revised Statutes 1899, sec. 2926) makes it the duty of the court in decreeing a divorce "to make such order touching alimony and maintenance of the wife and the care, custody and maintenance of the children as shall be reasonable," it must certainly be presumed that the court obeyed the mandate of the statute, and that the allowance of the gross sum of two thousand dollars to the wife, together with the care and custody of the children, was an adjudication that this was the full measure of her right which the court could allow under the statute. This is true, especially in view of the fact that the amount awarded her was almost two-thirds of the value of the property, and that the decree required the plaintiff, as a condition precedent to receiving this two thousand dollars, to quitclaim her interest in the real estate. Chester v. Chester, 17 Mo.App. 660; 2 Nelson on Divorce and Separation, sec. 983; 9 Am. and Eng. Ency. of Law (2 Ed.), 873. (2) So long as the decree rendered in the divorce case stands, it is the measure of the rights and obligations of the parties to each other, and could be pleaded as a bar in any suit in which the same questions were sought to be litigated. If the decree was inadequate or failed to give plaintiff the full measure of relief, her only remedy would be by a proceeding to amend or modify that decree. She could not attack it or ignore it in a collateral proceeding. Since under our statute the divorce court retains jurisdiction over the case, any proceeding to modify the decree would have to be had in the divorce case itself. 9 Am. and Eng. Ency. of Law (2 Ed.), p. 872, cases cited in note 2; 7 Am. and Eng. Enc. Pl. and Pr., 131; 2 Nelson, Div. and Separation, sec. 981; McKness v. McKness, 30 S.W. 207; In re Morgan, 117 Mo. 256, 21 S.W. 1122, 22 S.W. 913; Brown v. Smith, 19 R. I. 319; Husband v. Husband, 67 Ind. 583; Ramsey v. Ramsey, 121 Ind. 221; Johnson v. Onsted, 74 Mich. 437; Hall v. Green, 87 Me. 122; Brown v. Brightman, 136 Mass. 187; Finch v. Finch, 22 Conn. 411; Chandler v. Dye, 37 Kan. 765; Burritt v. Burritt, 29 Barb. 124; Rich v. Rich, 88 Hun 566.
William P. Sheridan and Joseph Block for respondent.
(1) Alimony is maintenance for the wife alone, not also for the children. Our statute contemplates that the decree should separate the allowance to the wife as alimony for her support and the allowance to her as maintenance for the children, and that the two amounts should be set out separately in the decree. This is the proper and approved form of decree. Chester v. Chester, 17 Mo.App. 567; 2 Bishop on M. and D. and Sep., secs. 1020 and 1213. When the decree of divorce does not provide for the maintenance and support of the minor children, the father is left in the same position as to them as before the decree was rendered, i. e., he is entitled to their earnings and is liable for their support. This is true irrespective of whether the decree awards their custody to the mother or is silent on the subject. Biffle v. Pullam, 114 Mo. 50, 21 S.W. 450; Keller v. St. Louis, 152 Mo. 596, 54 S.W. 438. The divorced wife can maintain an independent action against her former husband for expenditures by her for maintenance and support of minor children of the marriage after decree of divorce. Zilley v. Dunwiddie, 98 Wis. 428; Gibson v. Gibson, 40 L.R.A. 578; Pretzinger v. Pretzinger, 45 Ohio St. 452; McCloskey v. McCloskey, 93 Mo.App. 393, 67 S.W. 669; Rankin v. Rankin, 83 Mo.App. 338. In this State an independent action is the sole remedy by which she can recover. In a proceeding to modify the decree of divorce she can obtain an order for future maintenance only, and can not recover for expenditures for past maintenance. Meyers v. Meyers, 91 Mo.App. 151; Shannon v. Shannon, 97 Mo.App. 119, 71 S.W. 104.
BLAND, P. J. (after stating the facts).--In view of all the evidence, the allowance is a very reasonable one if the plaintiff is entitled to...
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