Mathews v. Mathews

• Decision Date: 21 June 1960
• Docket Number: 30306,Nos. 30305,s. 30305
• Citation: 337 S.W.2d 529
• Parties: Maryan A. MATHEWS, (Plaintiff) Respondent, v. Robert F. MATHEWS, (Defendant) Appellant.
• Court: Missouri Court of Appeals

Page 529

337 S.W.2d 529

Maryan A. MATHEWS, (Plaintiff) Respondent, v. Robert F. MATHEWS, (Defendant) Appellant.

Nos. 30305, 30306.

St. Louis Court of Appeals, Missouri.

June 21, 1960.

Motion for Rehearing or to Transfer to Supreme Court Denied

Sept. 6, 1960.

James A. Finch, Jr., Finch, Finch & Knehans, Cape Girardeau, v. Lee McMahon, St. Louis, for appellant.

Lashly, Lashly & Miller, John H. Lashly, Billie R. Bethel, St. Louis, for respondent.

SAM C. BLAIR, Special Judge.

Consolidated and before us are two appeals from rulings in the trial court in a divorce proceeding: (1) on 'Motion of plaintiff for additional allowance for support of the children and for modification and interpretation of the decree,' number 30,305, and (2) on 'Motion of plaintiff for attorneys' fees' for legal services rendered plaintiff in defense of 'Defendant's motion for charge of custody,' number 30,306.

On March 6, 1954, the plaintiff, Maryan A. Mathews, was granted a divorce from the defendant, Robert F. Mathews. The general custody of the four children of the parties was awarded to the plaintiff with reservations to the defendant for specified rights of visitation during spring and summer vacations and Christmas holiday periods. The defendant was ordered to pay the plaintiff $800 per month for the support of the children and additional contingent allowances. The original decree provided also that: 'Any expense of tuition and board at private schools for said children shall be paid by the defendant to such school or schools as the parties hereto mutually agree that the children shall attend. * * * In matters affecting the health, education, and moral or physical environment and welfare of said children, or any of them, both parents shall have an equal voice, and in case of inability to come to agreement they shall resort to the court for its decision; * * *.' It is this provision of the decree that the trial court construed and applied in ruling on the 'motion of plaintiff for an additional allowance for support of the children and for modification and interpretation of the decree.' The prayer of that motion was that 'the court declare that the question of the attendance of Patricia, the daughter of the parties, at Mary Institute in September, 1958 and thereafter is a matter affecting 'the health, education and moral or physical environment and welfare' of said child and that it would be in the best interest of said child Patricia that plaintiff be provided with an additional allowance from defendant for the purpose of carrying through the program as herein-above described of enrolling her said daughter Patricia in Mary Institute and that the court so interpret the decree.'

The trial court granted the motion, and found that plaintiff should recover from defendant $300 already advanced as tuition by plaintiff for Patricia's attendance at Mary Institute and ordered that thereafter he should pay Patricia's tuition when due. The defendant appeals.

The appeal on this ruling is based on the following grounds: (1) there was no proof that the $200 paid monthly for support of Patricia would not cover such tuition; (2) plaintiff did not establish that she had no independent means and her own evidence actually showed that she had 'considerable net worth and substantial income' which she ought to use to pay the tuition herself; (3) there was no proof of changed conditions and need for an additional allowance; (4) there was no evidence of an agreement between the parties that Patricia attend Mary Institute; and (5) there was no evidence that attendance by Patricia at Mary Institute was necessary for her health, education, and moral or physical environment and welfare within the meaning of the decree.

In the outset we emphasize that we are ruling only the controversies which the parties raise by the record they present to us, and no others. There is before us nothing questioning the authority of the trial court to make the provision in the original decree now under scrutiny governing the education of the children, and no claim that the trial court was at all events without power to require defendant to pay the arrearage, $300, in Patricia's tuition accruing prior to its ruling. The questions presented embrance only the construction of the present provision and the sufficiency of the evidence to support the award under a correct construction of it.

We believe that the claim that there is no proof that the $200 paid monthly for the support of Patricia would not cover such tuition is answered by the decree itself. In the first place, the decree explicitly requires that plaintiff shall use the $800 monthly allowance 'for the support, maintenance and exclusive welfare of said children.' Tuition at private schools is specially provided for in subsequent paragraphs of the decree. To us it is obvious that it was not intended that any part of that allowance for support of the four children should be devoted to any 'expense of tuition and board at private schools for said children' when this last 'expense' was additionally and specially provided for later in the decree and expressly made the obligation of defendant.

Our view is that the claim that plaintiff failed to establish that she had no independent means to pay the tuition and that actually she had 'considerable net worth and substantial income' which she could employ to defray that expense is without merit. It is the primary duty of a father to support and educate his children and he is not absolved from it because the mother may have independent means. Luplau v. Luplau, Mo.App., 117 S.W.2d 366; Lodahl v. Papenberg, Mo.Sup., 277 S.W.2d 548; Roberts v. Roberts, Mo.App., 292 S.W.2d 596; Keller v. City of St. Louis, 152 Mo. 596, 54 S.W. 438, 47 L.R.A. 391; Winner v. Shucart, 202 Mo.App. 176, 215 S.W. 905; Mothershead v. Mothershead, 236 Mo.App. 737, 161 S.W.2d 669; 67 C.J.S. Parent and Child Sec. 15b; 22A Mo.Dig., Parent & Child, k3(1), 3.1(3). Moreover, the original decree explicitly provided that the father should bear these obligations.

Of the complaint that there was no proof of changed conditions and of need for an additional allowance, we think that there was no requirement for proof of changed conditions in the sense we ordinarily understand where the usual modification of a divorce decree is sought. The provision of the decree under study makes no such requirement. It requires the defendant to pay all expenses for tuition and board of the children in private schools. Regarding the education of the children, it provides that each parent shall have an equal voice, and if they cannot 'come to agreement they shall resort to the court for decision.' Our judgment is that a failure of the parents to agree under this provision regarding the education of the children is all that is required to entitle the one parent or the other to resort to the court for a decision. After such resort, it is of course the duty of the court to investigate the circumstances of the parties and the educational program proposed and then to decide the dispute on its merits always holding the welfare of the child in view. These observations demonstrate besides, we think, that defendant's claim that the trial court could not make an order respecting the education of Patricia, absent agreement by the parties, is plainly untenable.

Questioned also is the sufficiency of the evidence to support the ruling of the trial court that 'attendance by Patricia at Mary Institute was necessary for her health, education, and moral or physical environment and welfare' within the meaning of the decree. The parties are in agreement on the facts. The financial ability of defendant to pay this tuition is not an issue, for he admitted his ability while testifying. On May 1, 1956, plaintiff received a letter from defendant proposing a drastic amendment to the decree which would grant him custody of the four children during one half the school year with a division of the summer and spring vacation periods. As observed already, the original decree granted plaintiff general custody of the children, except that defendant was to have custody on alternate week-ends and during one half the vacation periods. There were other provisions alternating custody of the children in even-numbered and odd-numbered years during parts of the Christmas holidays. In the letter, defendant stated that the arrangement proposed would afford him an opportunity to have more influence on the children. He also stated, 'If this can be arranged I will agree to send both the girls, * * * (Maryan and Patricia) to Mary Institute and pay their full tuition and any related expenses.' There is no evidence that plaintiff answered the letter.

In January 1957, Maryan and Patricia took examinations for entrance to Mary Institute but neither was successful. In January 1958 they took the examinations again. Patricia was successful but Maryan was not. Plaintiff testified she took the girls to these last examinations, making the necessary arrangements for them, and could not say whether defendant knew she was doing so. In April of that year plaintiff was notified that Patricia had been accepted by Mary Institute. She notified defendant's attorney and later learned that he had spoken to defendant, but she received no word from defendant or his attorney as to whether defendant 'said yes or no about it.' She borrowed $300 from her mother and paid the first half year's tuition for Patricia. Patricia entered Mary Institute in September of that year. Plaintiff testified that it was her 'desire that Patricia remain as a student in Mary Institute' and that she thought 'It is good for her--a good experience for her.' She stated that 'the girls (Patricia and Maryan) were not getting the proper groundwork at Ladue (schools) that they should get.' She recognized 'that the Ladue public schools are good schools * * * the best in the country,' but the progress of her girls was...