Mahan v. Mahan

• Citation: 192 S.W.2d 626,239 Mo.App. 317
• Parties: Robert C. Mahan, v. Pauling Mahan
• Decision Date: 11 February 1946
• Court: Court of Appeals of Kansas

192 S.W.2d 626

239 Mo.App. 317

Robert C. Mahan, v. Pauling Mahan

Court of Appeals of Missouri, Kansas City

February 11, 1946

Appeal from Circuit Court of Jackson County; Hon. John R. James Judge.

Affirmed.

David Bresler and Charles V. Garnett, for appellant.

(1) The motion to modify wholly fails to allege facts showing a change of condition, and the Circuit Court was without jurisdiction to entertain it. North v. North, (Mo.) 100 S.W.2d 583, 587; State ex rel. Scott v. Harris, 136 S.W.2d 78, 80; Ruedlinger v. Ruedlinger, 222 Mo.App. 819, 10 S.W.2d 324, 325. (2) The evidence affirmatively shows that the condition of the parties has not changed since the original decree was rendered, and the Court erred in modifying it. Kleine v. Kleine, 111 S.W.2d 242.

Roy P. Swanson, Michaels, Blackmar, Newkirk, Eager & Swanson, for respondent.

The record shows that the circumstances of the parties had changed since the entry of the decree of divorce, that plaintiff was unable to comply with the court's order concerning alimony and maintenance, and accordingly the court properly modified the order by reducing the amount of alimony only. Hayes v. Hayes (Mo. App.), 75 S.W.2d 614; Schulte v. Schulte (Mo. App.), 127 S.W.2d 748; Dimmitt v. Dimmitt (Mo. App.), 150 S.W. 1107; Dowling v. Dowling, 181 Mo.App. 675; Bender v Bender, 190 Mo.App. 572; Viertel v. Viertel, 212 Mo. 562; Sec. 1519, R. S. Mo. 1939; Bowzer v. Bowzer (Mo. App.), 155 S.W.2d 530; Bova v. Bova (Mo App.), 135 S.W.2d 384; Eaton v. Eaton (Mo. App.), 237 S.W. 896; Meyers v. Meyers (Mo. App.), 22 S.W.2d 853.

OPINION

Cave, J.

This is an appeal from an order modifying a divorce decree by reducing the amount of the alimony award $ 25 per month.

The original suit for divorce was filed by the husband in June, 1944. The decree of divorce was granted to the wife on her crossbill at the December, 1944, term. She was awarded $ 60 per month for the support of their one child and $ 110 per month alimony. There was no appeal from that judgment. On May 1, 1945, which was during the March, 1945, term, plaintiff filed his motion to modify that part of the decree providing for alimony and child support. The court ordered modification, as above noted and the divorced wife appealed.

Her sole contention is that there is neither allegation in the motion nor proof in support of it to authorize the court in making any order of modification; this for the reason there are no new facts or changed conditions alleged or proved and, therefore, the court had no jurisdiction to order modification.

It is the settled law of this state that an unappealed decree of divorce, though remaining open for variation from time to time, as the changed circumstances of the parties may require, is a final decree, which cannot be changed as to alimony or the custody of children, except under new facts occurring after the trial which will justify such change. [Eaton v. Eaton, 237 S.W. 896; Foster v. Foster, 146 S.W.2d 849, and Olson v. Olson, 184 S.W.2d 768.] It is also well settled that a motion to modify a divorce decree is in the nature of an independent proceeding, and the motion is treated as a petition in an original action. [North v. North, 339 Mo. 1226, 1236, 100 S.W.2d 583, 587; Hayes v. Hayes (Mo.), 152 S.W.2d 1, 4; Olson v. Olson, supra.]

Plaintiff's motion alleges in substance that his income is insufficient to justify the payment required; that he is unable to pay said amount; that he is being forced further into debt in order to comply with the court's order; that he cannot keep his present position with his employer if he is required to continue said payment; that the defendant is a competent stenographer and is now physically able to work but refuses to do so; that she is extravagant and does not need the allowance of $ 170 per month for herself and their one child; and that under all the circumstances the order providing for alimony and child support should be modified and reduced so as to conform to the income of plaintiff and the needs and circumstances of the parties.

No objection was made to the sufficiency of the motion and the parties proceeded to trial. The court confined the evidence to facts and conditions arising or existing subsequent to the divorce decree. While the motion is couched in general terms and is not as specific as might be desired, we consider it sufficient after judgment. Sec. 1519, R. S. 1939, authorizing such a motion does not specify what it shall contain, but we think it should be sufficiently definite to inform the opposite party of the facts to be relied on for modification.

The evidence causes us more concern than does the allegations of the motion. Plaintiff's evidence is to the effect that his basic salary is $ 400 per month, the same as it was prior to the divorce, but he testified that, due to marital troubles, he had been unable to earn an annual bonus payable in May, 1945, although prior to their trouble he had always earned the bonus; to this extent his annual income had been reduced; that his take home pay is $ 285.55, after deducting federal income tax, social security, war bonds, group insurance and monthly pension payments. He then detailed his necessary living expenses, which seem modest, and that after paying these necessary expenses, plus the allowances made by the divorce decree, left him $ 33.11 short of his take home pay. His itemized statement of his necessary expenses did not include anything for clothing, repair and upkeep of his automobile, which he uses in his work, or necessary medical expense or any miscellaneous items. He stated that he had only two suits of clothes, both of which were quite worn, and that he needed new clothes; that his automobile was in need of repairs, and that his physical condition was such that he needed, and must have, an operation; that he had no money to use for such necessary purposes; that in order for him to live at all he had to "pad" his expense account, and that his employer had...