Nelson v. Nelson

• Decision Date: 30 April 1920
• Citation: 282 Mo. 412,221 S.W. 1066
• Parties: NELSON v. NELSON.
• Court: Missouri Supreme Court

221 S.W. 1066

282 Mo. 412

NELSON v. NELSON.

Supreme Court of Missouri, in Banc.

April 30, 1920.

Motion for Rehearing Denied May 18, 1920.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Action of divorce by Olive May Nelson against James Andrew Nelson. From an order setting aside the original judgment for alimony in so far as it applied to the payment of alimony since plaintiff's remarriage, plaintiff appealed to the Court of Appeals, which certified the cause to the Supreme Court Judgment affirmed in so far as it canceled payments of alimony subsequent thereto; reversed in other respects.

James C. Rieger and W. C. Hock, both of Kansas City, for appellant.

Frank M. Lowe, of Kansas City, for respondent.

RAGLAND, C.

On the 19th day of January, 1903, appellant secured in the circuit court for Jackson county a decree of divorce from respondent, wherein she was awarded alimony from year to year, payable in monthly installments of $35, beginning on the 20th day of January next ensuing. On the 23d day of August, 1904, she was remarried to one Wallace, from whom she later obtained a divorce and the restoration of her former name of Nelson. Respondent never paid a single installment of the alimony, and the record does not disclose that the appellant ever took any steps to enforce her judgment therefor. "However, on the 9th day of January, 1913, she began proceedings to revive the judgment by scire facias. Respondent appeared and filed an answer in which he alleged in substance hat he had paid all sums due from him to appellant. A hearing was had in October, 1914, and a judgment of revival was rendered. February 29, 1916, respondent filed a motion alleging the remarriage of appellant and asking the court on that ground to so modify the judgment that he would be relieved of the payment of all installments of alimony accruing after the date of the remarriage. No pleading of any kind was filed in opposition. The hearing on the motion to modify was had at the March term, 1916. The evidence heard consisted of the record of the proceedings hereinbefore referred to and the admission by appellant of her remarriage and subsequent divorce. The court took the matter under advisement until the May term, 1916, and on the 20th day of May, during said term, the motion was sustained and judgment entered setting aside the original judgment as revived, in so far as it provides for the payment of alimony from and after August 23, 1904, the date of appellant's remarriage. Appellant was allowed an appeal to the Kansas City Court of Appeals, where a decision was rendered; but that court, deeming its decision contrary to a previous decision of the St. Louis Court of Appeals, certified the cause to this court for determination.

This appeal presents but two questions for consideration: First, whether respondent, inasmuch as he did not plead appellant's remarriage in his answer to the scire facias in the revivor proceeding, is not now concluded in that respect; and, second, whether the court had the power under the statute to so modify the judgment for alimony as to vacate and annul the same as to the installments that had accrued prior to the entry of the order of such modification. We agree with the conclusions of the Kansas City Court of Appeals and generally with its reasoning in support thereof; but, inasmuch as the St. Louis Court of Appeals has reached a different conclusion on the proposition involved in the second question above, it is deemed proper to state somewhat more at length the grounds of the decision that appear in the opinion of the Kansas City Court of Appeals.

1. Appellant's first contention invokes the familiar rule that a valid judgment for the plaintiff definitely and finally negatives every defense that might and should have been raised against the action. If respondent could have pleaded appellant's remarriage in response to the scire facias as a showing of sufficient cause why the judgment against him should not be revived, such plea is unavailing to him in this proceeding.

It is well settled that, as far as the merits are concerned, there are in a general way but two defenses available to the defendant in an action to revive a judgment by scire facias. One is that there is no such judgment, and the other, that some fact has come into existence since its rendition that operates to discharge it, payment, release, or some other. So that the only question in this connection is whether appellant's remarriage operated ipso facto to dissolve respondent's obligation to pay alimony and thereby discharged the judgment therefor. The decree adjudging the alimony does not so provide, neither does the statute. Absent such a provision in either the one or the other, the general law must be looked to. The question of the effect of remarriage by a divorced wife on the judgment awarding her alimony seems never to have been passed on by the appellate courts of this state. There is, however, an abundance of authority elsewhere from which the general rule may be deduced that such remarriage has no direct effect upon the judgment for alimony. It merely affords a basis upon which the court, upon the application of the former husband, may modify or annul it. 11 Ann. Cas. 523. The doctrine of the cases supporting this rule seems to be that where a wife obtains a divorce and afterwards remarries, and the husband of such second marriage is not able to support her in the position of life to which she is accustomed, the court will consider such circumstances, and, while it will not order that such payments of alimony shall cease, may reduce the amount. In such cases the burden is on the wife to show that her second husband is not able to support her, and where she introduces no evidence on this point it will be presumed that he is abundantly able to fulfill his marriage obligations. Southworth v. Treadwell, 168 Mass. 511, 47 N. E. 93. Whether the holding of these cases, in so far as they hold that a divorced wife on remarriage is still entitled to payments of alimony from her former husband in a reduced amount, or in any amount whatever, is in accord with sound public policy and good morals, is doubtful. A better view would seem to be that the divorced wife by remarriage abandons the provision made for her support out of the estate or earnings of her former husband, as embodied in the judgment for alimony, for that adequate support for which she contracts by the subsequent marriage.

Treating alimony, as on principle should be done, as the equivalent of that obligation for support which arises in favor of the wife out of the marriage contract, and which is lost when that contract is annulled, she obtains the same obligation for support by a second marriage, and it is unreasonable and illogical as well as unseemly that she should have both at the same time. She should therefore in such circumstances be held to have abandoned the alimony for the support contracted for by the subsequent marriage, and, having once done so, the obligation against the former husband cannot be revived upon the death or divorce of the subsequent one. But it is not necessary for us to pass upon this particular phase of the subject on the facts of this case. On the trial respondent proved the remarriage, and appellant offered no evidence touching the inadequacy of the support furnished by her second husband during the continuance of that marriage, or of the alimony, if any, decreed her on her divorce from him.

We do hold, however, that remarriage does not ipso facto dissolve the obligation to pay alimony. Under the statute the judgment therefor stands in full force unless and until modified by the court pronouncing it. The court can act in that behalf only when application therefor is made by one of the parties, and in such proceeding the fact of remarriage at least must he judicially determined. It follows that the fact of appellant's remarriage could not have been asserted as a defense in the revivor proceeding. We further hold on this phase of the case that respondent in proving the remarriage made a prima facie case, which, in the absence of countervailing evidence of the character heretofore indicated, entitled him to have the judgment annulled at least as to future payments of alimony.

2. The second question for decision is whether the trial court was authorized to so modify the judgment as to entirely wipe out the installments that had accrued after the second marriage and prior to the entry of the order of such modification. This involves a more definite construction, or rather interpretation, of section 2375, Revised Statutes 1909, which, among other things, provides that—

"The court, on the application of either party, may make such alteration, from time to time, as to the allowance of alimony * * * as may be proper."

Because of the unique character of the action for divorce and alimony, such interpretation is not without difficulty.

"The action, * * * the defenses thereto, and the proceedings therein, are, as far as suited to our day, and situation, controlled by the law of the English ecclesiastical courts (common law with us) as modified, changed, or, in some matters, supplanted by our statutes." Chapman v. Chapman, 2611 Mo. 663, 668, 192 S. W. 448, 449.

To determine, therefore, whether there are any limitations which circumscribe the power of the court to modify its judgments expressly given by section 2375, that section must be read in connection with the entire statute on the subject of divorce and alimony, and the whole considered with reference to the ecclesiastical law which it...