Nelson v. Nelson

• Decision Date: 19 November 1974
• Docket Number: 35469 and 35830,Nos. 35419,s. 35419
• Parties: Margot B. NELSON, Plaintiff-Respondent, v. Elmer Ernest NELSON, Defendant-Appellant. STATE of Missouri ex rel. Margot B. NELSON, Relator, v. The Honorable John R. RICKHOFF, Judge of Div. 13 of the Twenty-First Judicial Circuit of Missouri and of the Circuit Court of St. Louis County, Missouri, Respondent. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 574

516 S.W.2d 574

Margot B. NELSON, Plaintiff-Respondent, v. Elmer Ernest NELSON, Defendant-Appellant.

STATE of Missouri ex rel. Margot B. NELSON, Relator, v. The Honorable John R. RICKHOFF, Judge of Div. 13 of the

Twenty-First Judicial Circuit of Missouri and of

the Circuit Court of St. Louis County,

Missouri, Respondent.

Nos. 35419, 35469 and 35830.

Missouri Court of Appeals, St. Louis District, Division Three.

Nov. 19, 1974.

Wm. L. Clinton, St. Louis, for defendant-appellant.

Ann Q. Niederlander, St. Louis, for plaintiff-respondent.

McMILLIAN, Judge.

The appeals have been consolidated. Defendant Elmer Ernest Nelson, appeals from the judgment entered by the Circuit Court of St. Louis County overruling his motion to quash a writ of sequestration filed by plaintiff; and from a judgment allowing plaintiff an attorney's fee and Margot B. Nelson moves this court to make absolute a preliminary writ of prohibition. These matters arose out of a prior divorce decree and stipulation incorporated therein. We reverse and affirm the respective judgments of the Circuit Courts for the reasons indicated.

Plaintiff, Margot Nelson, brought an action for divorce, alimony and attorney's fees in October, 1968, in the Circuit Court of St. Louis County against Elmer Ernest Nelson. No children were born of the marriage. In January, 1969, on the default of defendant a divorce was granted Ms. Nelson.

On that day prior to the hearing the parties executed and filed with the court a 'Stipulation' which indicated that the divorce action was pending and that 'the parties are desirous of settling their property rights in the event the Court should decide to grant a Decree of Divorce to the plaintiff . . .'

In its decree the court ordered the dissolution of the marriage between plaintiff and defendant; that defendant should pay '. . . $300.00 per month as and for alimony in accordance with stipulation filed,' $375.00 attorney's fees, and also costs. Lastly, the court indicated 'Stipulation filed and made a part of Decree.' The decree filed herein fails to reveal what the stipulation was.

The stipulation as shown in the record, consisted of thirteen (13) clauses disposing of various items of realty and personalty owned by the parties, conferring certain rights, and providing for certain contingencies. The tenth clause contained the agreement that defendant pay to his wife the same amount monthly alimony which the divorce decree ordered. ¹ And the thirteenth clause provided for an automatic reduction of the amount of 'alimony' without motion to the court upon the happening of a condition. ² Thereafter in March, 1973, plaintiff filed an application for a writ of sequestration directed to defendant's employer, the Board of Education of Ladue, after defendant's payments fell into arrears in the amount of $3800.00. Defendant filed his motion to quash the execution writ which was overruled, as was his motion for rehearing. This appeal was taken along with an appeal from an order of a $500.00 attorney's fee.

After defendant's appeals were perfected to this court, he later petitioned the circuit court and was granted a motion ordering plaintiff to return the sequestered funds to the registry of the court. Plaintiff then applied to this court for a writ of prohibition to stay Judge Rickhoff from enforcing that order, which we granted preliminarily.

The issues presented to this court on which the parties predicate error are whether: (1) the overruling of defendant's motion to quash the writ of sequestration constitutes an appealable order; (2) the allowance for $300.00 per month 'alimony' is in fact statutory alimony or is purely contractual; (3) the award of a $500.00 attorney's fee is proper; and (4) the lower court was vested with jurisdiction to make any further order in the cause subsequent to appeals having been filed.

Defendant first contends that his appeal from the overruling of his motion to quash is a final, appealable order.

It is axiomatic that an appeal is statutory and is properly taken only from final judgments and orders which dispose of the issues. Toth v. Toth, 483 S.W.2d 417 (Mo.App.1972). In Carrow v. Carrow, 294 S.W.2d 595 (Mo.App.1956), a husband filed a motion to quash an execution issued on a judgment for child support. His motion was denied. On appeal the wife moved to dismiss his appeal because she contended the order overruling the husband's motion to quash the execution did not constitute a final determination of the issues. We reversed and stated, '. . . Section 512.020 RSMo 1949, V.A.M.S. include 'any special order after final judgment in the cause'. This refers to orders in special proceedings attacking or aiding the enforcement of the judgment. City of Caruthersville v. Cantrell, Mo.App., 241 S.W.2d 790. . . .' Here, the principal action--the divorce--has been disposed of. No one can deny that the Order on the motion to quash is a 'special order after final judgment in the cause.' The order was made in a proceeding independent of the divorce; thus, it is appealable. The fact that the court failed to make an order of distribution has no bearing on the question whether this particular after-judgment order is appealable. No issue with respect to distribution of the money obtained by the garnishment had been raised or remained undetermined at the time the appeal was taken. Carrow v. Carrow, supra, p. 597. See also Anderson v. Anderson, 404 S.W.2d 206 (Mo.App.1966) where Doerner, C., reached a similar result. Consequently, we hold that a decision overruling a motion to quash is a final disposition of the subject matter of the motion made in post proceedings independent of the principal case.

Next, defendant contends that the allowance by the divorce court for 'alimony' was made pursuant to the stipulation signed by the parties and was in fact an approval of a contractual obligation as opposed to an award of statutory alimony. Defendant argues that the document designated a 'stipulation' was a property settlement agreement and, when approved by the court, a valid and binding contract enforceable only by a separate suit on contract. Plaintiff argues that the stipulation must be construed to show an intention of the parties to provide the wife with alimony in the statutory sense.

Uniformly, the cases stand for the proposition that a husband and wife in contemplation of divorce may, by valid contract between them, settle and adjust all property rights growing out of the marital relation, including the wife's right to alimony. Concededly, as the cases universally hold, every contract providing for an award of 'alimony' referred to or incorporated in the divorce decree must be construed upon its own wording to ascertain the intention of the parties. The purpose of the two methods, private contract or judicial decree, is the same, viz., to provide the wife with support. Yet each affords a distinct right which is enforceable differently from the other. Gunnerson v. Gunnerson, 379 S.W.2d 861, 865 (Mo.App.1964).

If the parties intended the stipulation to accomplish its ordinary purpose as merely advisory to the court, Goulding v. Goulding, 497 S.W.2d 842, 845 (Mo.App.1973); Wesson v. Wesson, 271 S.W.2d 214, 216 (Mo.App.1954); Alverson v. Alverson, 249 S.W.2d 472 (Mo.App.1952), then the award was for statutory alimony or in the nature of alimony, the contract provision incorporated in the decree was merged in the decree, was modifiable upon proper showing, and constituted a judgment upon which a levy of execution would issue. Toth, supra, 483 S.W.2d p. 22, citing North v. North, 339 Mo. 1226, 100 S.W.2d 582 (1936); Chappell v. Nash, 399 S.W.2d 253, 256 (Mo.App.1965); Jenks v. Jenks, 385 S.W.2d 370, 375 (Mo.App.1965); Guyton v. Guyton, 17 Ill.2d 439, 161 N.E.2d 832, 834 (1959). If, on the other hand, the parties intended the document designated a stipulation to be a final property settlement, then the decreed allowance pursuant to the stipulation as and for alimony was a consent decree to be regarded and construed as a contract between the parties and having the force and effect of any other contract, that is, not modifiable except by mutual consent or by reason of fraud, duress, or illegality, and enforceable by a separate suit on the contract not ancillary to any divorce proceeding. Toth, supra, 483 S.W.2d p. 442 citing North, supra; Catron v. Catron, 492 S.W.2d 172, 176--177 (Mo.App.1973) (distinguishable factually but noting with approval the 'Iowa view') ³; Alverson, supra; Jenks, supra, 385 S.W.2d p. 375, citing McDougal v. McDougal, 279 S.W.2d 731 (Mo.App.1955) and Luedde v. Luedde, 240 Mo.App. 69, 211 S.W.2d 513 (1948); Garmisa v. Garmisa, 4 Ill.App.3d 411, 280 N.E.2d 444, 452 (1972); Ragen v. Ragen, 4 Ill.App.2d 445, 124 N.E.2d 628, 630 (1954).

The facts here show (1) a property settlement agreement designated a 'stipulation' and executed by both parties; (2) a decree which expressly incorporates the agreement; and (3) an allowance of 'alimony' in the decree based on an 'alimony' provision in the agreement. The question is whether the allowance should be treated as statutory alimony or a contractual obligation.

While courts in most states agree that spouses in contemplation of divorce may validly contract to settle property rights arising out of the marriage, including alimony, there is some disagreement over the effect to be given these contracts when they are incorporated into the divorce decree. Some jurisdictions give the property settlement agreements independent significance as contracts, regardless of incorporation. See Annot., 166 ALR 675, 693 et seq. (1947). Other jurisdictions view the agreements as merged with the decree, subject to enforcement as an order of the court or modification as a judgment of the court. See 27B C.J.S. Divorce § 301(2)(c).

Upon review of the cases decided on this issue, we conclude that Missouri courts follow the former approach--that is, where spouses...