Nolker v. Nolker

• Decision Date: 06 March 1923
• Docket Number: No. 17602.,17602.
• Citation: 249 S.W. 426
• Parties: NOLKER v. NOLKER.
• Court: Missouri Court of Appeals

249 S.W. 426

NOLKER v. NOLKER.

No. 17602.

St. Louis Court of Appeals. Missouri.

March 6, 1923.

Appeal from St. Louis Circuit Court; Franklin remiss, Judge.

"Not to be officially published."

Action by Pearl Hyman Nolker against Robert E. Nolker. From a judgment overruling his motion to modify a judgment for separate maintenance, defendant appeals. Affirmed.

Frumberg & Russell, of St. Louis, for appellant.

Abbott, Fauntleroy, Cullen & Edwards, of St. Louis, for respondent.

DAUES, J.

This is a suit by a wife against the husband for maintenance. The husband, appellant here, defendant below, appeals from a judgment of the trial court overruling his motion to modify a judgment for maintenance rendered against him in favor of plaintiff.

This case is still another phase of the litigation between appellant and respondent, involving their marriage contract and the obligations arising out of same. Our reports already contain several recitations of the facts and history of this unfortunate married life. Nolker v. Nolker, 208 S. W. 128; Nolker v. Nolker, 208 S. W. 135; Nolker v. Nolker, 226 S. W. 304. And there is now pending in the Supreme Court for decision an appeal from a decree of divorce and alimony in which the wife prevailed.

It becomes necessary, however, to an understanding of the issues involved in the instant case, that we recite again briefly so much of the history of this litigation as to make clear the matters now held in judgment. On March 12, 1919, the respondent, Pearl Hyman Nolker, instituted a separate maintenance suit against her husband, Robert E. Nolker, in the circuit court of the city of St. Louis. That petition alleged the marriage of the parties on January 4, 1912, and desertion by defendant about March 1, 1919, alleged that defendant owned property to the extent of $500,000, and prayed for $1,000 per month alimony. Afterwards, in November of the same year, the petition was amended, however, making the same prayer for maintenance. On November 4, 1919, the day the amended petition was filed, plaintiff also filed a motion for alimony pendente lite, and on December 1, 1919, the court sustained said motion for temporary alimony and entered judgment in her favor, ordering defendant to pay plaintiff as alimony pendente lite $250 per month until the further order of the court; also $350 as suit money, $250 of which was allowed as counsel fees, and the remaining $100 was ordered to be deposited for costs. This judgment, being appealed to this court, was affirmed.

On April 15, 1920, plaintiff, the respondent here, instituted divorce proceedings against defendant, the appellant here, in the circuit court of St. Louis county. In the original divorce suit (Nolker v. Nolker, 208 S. W. 128), the husband was plaintiff. The former suit was brought in the circuit court of the city of St. Louis, resulting in the dismissal of the husband's petition on an appeal to this court. The suit in the county eventuated in an allowance in that court for alimony pendente lite, the court, on June 7, 1920, allowing the wife $350 per month temporary alimony, to begin May 1, 1920, and during the pendency of said divorce action. The court also made allowance for attorneys' fees and suit money.

In making the allowance of $350 per month to plaintiff, the court ordered and decreed "the same to be credited with payments made, if any, for maintenance in the same period, under allowance of $250 per month in the maintenance suit between the same parties in the circuit court, city of St. Louis, and that execution issue therefor. In the divorce proceedings in the county, the defendant pleaded the judgment in the maintenance suit as a bar, or that he be given credit against any sums that he might be required to pay in the maintenance suit. The court recognized such plea and made allowance, as Is above noted. The divorce case (in the county) resulted in a decree in favor of the wife, plaintiff here, granting her a divorce and gross alimony in the sum of $27,000, from which judgment the defendant appealed, and this is the appeal that is now lodged in the Supreme Court.

After the decree was rendered in the circuit court of St. Louis county, granting the wife a divorce and alimony, appellant filed his motion in the circuit court of the city of. St. Louis to modify the judgment rendered for...