Moser v. Moser
| Decision Date | 27 January 1941 |
| Citation | 148 S.W.2d 71,235 Mo.App. 784 |
| Parties | JAMES M. MOSER, APPELLEE, v. GOLDA K. MOSER, APPELLANT |
| Court | Kansas Court of Appeals |
Appeal from Circuit Court of Jackson County.--Hon. Ray G. Cowan Judge.
AFFIRMED.
Judgment affirmed.
Tom Gershon and Marcy K. Brown, Jr. for appellee.
(1) The original decree of the trial court was in no sense an approval of and pursuant to an agreement between the parties but was a mere suggestion to the court and hence was not a final decree which could not later be modified. (a) There is insufficient evidence to show a contract existed. Thornhill v. Herdt, 130 S.W.2d 175, 179; McClintock v. Skelly Oil Co., 114 S.W.2d 181, 188 and 189; Dobbins v. City Bond & Mortgage Co., 124 S.W.2d 1111, 1116; In re Rexford v. Phillippi et al., 84 S.W.2d 628, 631; Jesse v. Rolaff, 74 S.W.2d 890, 893; Northrupt v. Colter, 131 S.W. 364 366; Luckey v. R. R. Co., 113 S.W. 703, 704; Hubbard v. Store Co., 1060, 1061. (b) The evidence was insufficient to justify specific performance. Lee v. Dodd, 20 Mo.App. 271; Baldwin v. Corcoran, 7 S.W.2d 967, 968; Terry et ux. v. Michalak et ux., 3 S.W.2d 701, 703; Taylor v. Williams, 45 Mo. 80. (c) The evidence failed to show a contract or stipulation and was only advisory on the court. Meyers v. Meyers, 91 Mo.App. 151; Kinsella v. Kinsella, 60 S.W.2d 747; Mayes v. Mayes, 116 S.W.2d 1, 4. (2) The decree was not for alimony in gross. Marshall v. Marshall, 236 S.W. 378, 379; Meyers v. Meyers, 91 Mo.App. 151, 155; Arnold v. Arnold, 222 S.W. 996; Biffle v. Pullam, 114 Mo. 54; Steinback v. Lisa's Executors, 1 Mo. 228; Cox v. Bright, 65 Mo.App. 417, 422; Smith v. Rogers, 112 So. 190; Emerson v. Emerson, 87 A. 1033; Petersine v. Thomas, 28 Ohio 596; Shaw v. Shaw, 59 Ill.App. 268; Aiken v. Aiken (Ala.), 127 So. 819; Epps v. Epps (1929), 120 So. 150; Nelson v. Nelson, 282 Mo. 412, 422; Laweing v. Laweing, 21 S.W.2d 2, 3; Mayes v. Mayes, 116 S.W.2d 1, 4; Martin v. Martin, 195 Ill.App. 32; Tomlinson, 278 Mo. 282; Aylor v. Aylor, 176 S.W. 1068; Fisher v. (Md.), 109 A. 546; LeBeau v. New Hampshire, 114 A. 28. (3) That part of the decree awarding the proceeds of a life insurance policy to defendant is unauthorized and void. Landau v. Landau, 71 S.W.2d 49, 50; Watts v. Watts, 304 Mo. 361, 365; Ecton v. Tomlinson, 278 Mo. 282; Aylor v. Aylor, 176 S.W. 1068; Fisher v. Fisher (Mo.), 207 S.W. 261.
McVey & Clagett for appellant.
The original decree of the trial court, being an approval of and pursuant to an agreement between the parties, was a final decree not subject to modification. North v. North, 339 Mo. 1226, 100 S.W.2d 582, 109 A. L. R. 1061.
--This is an appeal from an order of the Circuit Court of Jackson County modifying a divorce decree as to the allowance made to the wife, which the decree denominates "alimony in gross," together with a requirement made of the husband that he continue to pay the premiums on a certain life insurance policy and not change the beneficiary therein.
On September 26, 1935, the husband filed his petition for divorce and thereafter the wife filed answer and cross-bill praying for divorce and alimony. In March, 1937, plaintiff dismissed his petition, and the cause was tried on the wife's cross-bill. She was granted a divorce and the court entered a judgment in her favor for the sum of "$ 10,390 alimony in gross," to be paid $ 100 per month from March 10, 1937, until July 10, 1937, and thereafter at the rate of $ 150 per month until the full amount of $ 10,390 was paid. The decree further provided that if the wife should remarry or die after $ 5000 had been paid, and before the full amount had been paid, then all future payments should cease. The decree also required the husband to continue paying the premiums on a certain life insurance policy on his life in which his wife was named beneficiary and that he not change the beneficiary therein named.
At the September, 1938, Term of the circuit court, the husband filed in said cause a motion asking that the divorce decree be modified as to the amount of alimony allowed the wife, that the monthly payments be reduced, and that he be relieved of the obligation of continuing in force the insurance policy.
After a hearing, the court did, on March 10, 1939, sustain the motion in part, and ordered the monthly payments reduced from $ 150 to $ 75, but affirmed all the other provisions and requirements of the original decree. The wife appealed from that order of modification and urges but one ground of error--namely "The original decree of the trial court, being an approval of and pursuant to an agreement between the parties, was a final decree not subject to modification."
The appellant relies on the decision of our Supreme Court in the case of North v. North, 339 Mo. 1226 (100 S.W.2d 582). That decision holds that if the allowance made in the divorce decree is alimony as contemplated by the statute (1355, Revised Statutes of Missouri, 1929), then it is subject to modification. However, if it is not alimony, but is the affirmance of a legal contractual obligation entered into between the parties, then it is not subject to modification by the court. The attorneys now representing these parties in this court did not represent them in the lower court. We must consider the record as it was made in the trial court.
At the hearing of the original case on the wife's cross-bill there was very little evidence introduced. The sole ground alleged for divorce in her cross-bill was desertion for more than one year, and the evidence pertained to that sole issue. There was no evidence concerning any contract between the parties settling the property rights of the husband and wife. She did testify that she requested alimony in her petition and that the amount of alimony had been agreed upon in the total sum of $ 10,390, which was to be paid at the rate of so much per month and that the husband was to continue in force a life insurance policy in the sum of $ 10,000 with her...
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