Meredith v. Meredith

• Decision Date: 03 June 1941
• Docket Number: No. 25568.,25568.
• Citation: 151 S.W.2d 536
• Parties: MEREDITH v. MEREDITH.
• Court: Missouri Court of Appeals

151 S.W.2d 536

MEREDITH v. MEREDITH.

No. 25568.

St. Louis Court of Appeals. Missouri.

June 3, 1941.

Rehearing Denied June 17, 1941.

Appeal from Circuit Court, St. Louis County; John A. Witthaus, Judge.

"Not to be reported in State Reports."

Action for separate maintenance by Anna Meredith against Charles A. Meredith, wherein the plaintiff filed motions for alimony pendente lite, attorneys' fees and suit money. From orders denying the motions, the plaintiff appeals.

Orders reversed, and cause remanded.

Taylor R. Young and Richard A. Austin, both of St. Louis, for appellant.

S. Mayner Wallace, of St. Louis, and E. McD. Stevens, of Clayton, for respondent.

BENNICK, Commissioner.

This is an appeal from certain orders of the Circuit Court of St. Louis County denying motions of plaintiff, the wife, for alimony pendente lite, attorneys' fees, and suit money, which motions were filed by plaintiff as adjuncts to an action for separate maintenance which she had theretofore brought against defendant, her husband, and which is now pending in said court awaiting a hearing and determination on its merits.

The petition in the main action is in the conventional form, alleging that plaintiff and defendant were lawfully married on December 24, 1936, and thereafter continued to live together as husband and wife until December 8, 1938; that plaintiff at all times faithfully demeaned herself and discharged her duties as the wife of defendant; but that defendant, wholly disregarding his duties as plaintiff's husband, did, on December 8, 1938, abandon plaintiff without good cause and without any justification or excuse, and since that time has refused and neglected to maintain and provide for plaintiff.

Following the filing of such petition, plaintiff filed her motion for alimony pendente lite, attorneys' fees, and suit money, which motion was overruled by the court after an extended hearing. Plaintiff thereupon filed a motion for alimony pendente lite, attorneys' fees, and expenses of appeal pending her appeal from such original order, which motion, after being heard by the court upon the evidence introduced upon the first motion, was likewise overruled.

This appeal is by plaintiff from both of such adverse rulings, and comes to this court for the reason that the amount in dispute between the parties on said motions does not appear to be beyond the limits of our appellate jurisdiction.

Defendant makes the point that there is no authorization for an appeal from an adverse ruling on a motion for alimony pendente lite, suit money, and the like in a separate maintenance action, but in this we think he is mistaken. Such a motion filed in connection with an action for separate maintenance, just as in the case of a similar motion filed in connection with an action for divorce, while necessarily constituting an adjunct to the main action, is nevertheless the basis of an independent proceeding before the court, which, when instituted, is to be finally and completely determined on its own merits as the particular situation may require. State ex rel. v. Seddon, 93 Mo. 520, 6 S. W. 342; State ex rel. v. Kirby, Mo.App., 256 S.W. 546. Its finality and effect considered, an order disposing of a motion for allowances pendente lite in a separate maintenance action is therefore in all respects a final judgment within the comprehension of Section 1184, R.S.Mo.1939, Mo.St.Ann. § 1018, p. 1286, and so the courts have consistently assumed it to be in entertaining numerous appeals by the party aggrieved in this very character of proceeding. Long v. Long, 78 Mo.App. 32; Hedrick v. Hedrick, 157 Mo.App. 633, 138 S. W. 678; Wyrick v. Wyrick, 162 Mo.App. 723, 145 S.W. 144; Nolker v. Nolker, Mo. App., 226 S.W. 304; McPheeters v. McPheeters, 207 Mo.App. 634, 227 S.W. 872; Silverman v. Silverman, Mo.App., 95 S.W. 2d 1237.

At the time of the hearing below, plaintiff was fifty-three and defendant seventy-two years of age. Both of the parties had been previously married. Defendant has a grown son by his former marriage, while plaintiff has two children, a son and a daughter, by her former marriage, both of whom reside with her at a location on Bellefontaine Road, in St. Louis County, where plaintiff and defendant lived together before their separation, and where plaintiff has continued to reside, notwithstanding the fact that the property was sold at foreclosure on February 28, 1939, some two months after the date of the separation. Following the foreclosure, plaintiff began paying rent of $45 a month for the place, the money being supplied by her daughter, twenty-four years of age, who is employed at one of the downtown banks in St. Louis. Plaintiff testified that she had no independent means whatever of her own, and that all the expenses of the household, consisting of herself, the daughter, and a son thirteen years of age, were paid exclusively out of her daughter's earnings. She further testified that she had been unsuccessful in her attempts to secure employment since the separation, and that in July, 1939, she had opened up a convalescent home at the Bellefontaine Road address, but had not been able to make any money out of it by the time of the hearing on her motions.

Before her marriage to defendant, plaintiff had run a boarding house in St. Louis, and it was while she was so occupied that she entered into a promise of marriage with defendant. Thereafter he purchased and moved out to the Bellefontaine Road property, with plaintiff accompanying him as his servant or nurse. It appears from plaintiff's testimony that defendant suffered from a bad heart and other complications, and that she had nursed and taken care of him for six months before the move to the county was made.

After the move to Bellefontaine Road, this initial relationship between plaintiff and defendant continued for some sixteen months until December 20, 1936, when she instituted an action against him for breach of promise. Upon this being done defendant met with plaintiff at her attorney's office, where an antenuptial agreement was prepared and executed, followed by their marriage on the very day of the execution of the agreement.

Such antenuptial agreement, so far as we can determine from the record, provided that plaintiff, upon becoming defendant's wife, should acquire no interest in any of defendant's property, either real or personal, except in the case of the Bellefontaine Road property, title to which was to be put in their joint names as tenants by the entirety, and which was to be taken subject to a mortgage of $5,500 or thereabouts, payable at the rate of $58.54 a month. It was plaintiff's understanding, or at least she so testified, that such indebtedness was to be paid out of the proceeds of certain securities owned by defendant which he kept in a safe deposit box in one of the St. Louis...