Noll v. Noll

• Citation: 286 S.W.2d 58
• Decision Date: 09 January 1956
• Docket Number: No. 22240,22240
• Parties: Neva NOLL, Respondent, v. A. J. NOLL, Appellant.
• Court: Court of Appeal of Missouri (US)

Page 58

286 S.W.2d 58

Neva NOLL, Respondent, v. A. J. NOLL, Appellant.

No. 22240.

Kansas City Court of Appeals, Missouri.

Jan. 9, 1956.

Errol Joyce, Brookfield, Austin Walden, Moberly, and Hess & Collins, Macon, for appellant.

Robert N. Jones, St. Louis, for respondent.

CAVE, Judge.

This is an appeal by A. J. Noll, the husband, from an order allowing Neva Noll, the wife, temporary alimony pending an appeal in a divorce case.

The issues on appeal are submitted on an 'Agreed Statement of Case', pursuant to Section 512.120 RSMo 1949, V.A.M.S. For brevity, we shall refer to the parties as the 'husband' (appellant), and the 'wife' (respondent). Also, all italics in this opinion are supplied.

In May, 1952, the wife filed petition for divorce and in due time the husband filed answer and cross bill. The case was tried in April, 1954, resulting in a judgment dismissing the wife's petition and granting the husband a divorce on his cross bill. The wife appealed and this court affirmed the judgment. Noll v. Noll, Mo.App., 277 S.W.2d 853. It is stipulated that immediately after the wife filed notice of appeal in the above reported case, one of her attorneys 'orally moved the court for temporary alimony pending the appeal'. By agreement, the motion was immediately heard. During the hearing one of the attorneys for the husband asked one of the wife's attorneys whether the wife 'was asking for any alimony other than the cost of the transcript and the brief'. The wife's attorney replied that 'he admitted that she was not entitled to any alimony other than the cost of the transcript and the brief, and that respondent (the wife) was not asking for anything more'. At the close of the hearing, the court entered an order requiring the husband to pay the expense of the transcript and the briefs. This order was entered May 1, 1954, and no appeal taken therefrom. (It should be pointed out that the wife's present attorney is not the same as on May 1, 1954.)

On July 9, 1954, the wife filed a written motion, through her new attorney, requesting the court to order the husband to pay her 'such amount as the court may determine to be reasonable for her support pending the appeal herein; * * *'. The motion alleged that she was without means or property of her own with which to support herself during the pendency of the appeal, and that her husband was possessed of a large amount of property. This motion was heard September 3, 1954, and the court ordered the husband to pay the wife $125 per month 'as temporary alimony from July 9, 1954 * * *'. The husband perfected his appeal from this judgment, and that is the matter now before us.

The Statement of the Case also sets out certain allowances made to the wife for temporary alimony, attorney fees and suit money prior to the trial of the divorce case. Those allowances were satisfied and are not directly material in this appeal.

The husband contends that the judgment of May 1, 1954, ordering him 'to pay the expense of the transcript and all briefs', was a final determination and judgment of the wife's right to allowances pending the appeal and is res judicata of all issues which were tried, or in the exercise of reasonable diligence, might have been tried at that hearing, consequently the court erred in making the allowance of temporary alimony for support on September 3d.

The wife contends that the order or judgment of May 1 was an interlocutory order and that the doctrine of res judicata does not apply to such an order. Citing Woods v. Woods, 236 Mo.App. 855, 159 S.W.2d 320, 323; State ex rel. Van Hafften v. Ellison, 285 Mo. 301, 311, 226 S.W. 559, 12 A.L.R. 1157; and Gay v. Gay, 146 Cal. 237, 79 P. 885, 887.

The general rule is that a judgment sought to be used as a basis for the application of the doctrine of res judicata must be a final and not an interlocutory judgment. Vol. 31 Am.Jur., Judgments, Sec. 436, page 95.

In 60 C.J.S., Motions and Orders, Sec. 65(g), page 81, it is said: 'It has been held that the doctrine of res judicata, in its strict sense, does not apply to the decision of a motion, or to mere orders, or, more particularly, to decisions on interlocutory motions or motions in the course of practice, or in a pending action; and an order made on a motion is not res judicata in the same sense as a judgment. The doctrine of res judicata has been said not to be regarded as applying to ex parte orders. Nevertheless, there is a disposition to enlarge the scope of the doctrine, and to regard the decision of a motion as res judicata where the proceedings permit of a full hearing on the merits, and where the same or a similar order or relief is again being sought on the same state of facts in the same action, suit, or proceeding, especially where the order may be reviewed on appeal. So, final orders, or orders affecting substantial rights, fully litigated, and from which an appeal lies, are conclusive of the matter adjudged and, under the doctrine of res judicata, binding on the parties in all subsequent proceedings, unless reversed or modified by an appellate court; * * *.'

Thus, the first question for decision is whether the order or judgment of May 1 was a final or an interlocutory order or judgment. In arriving at a solution of this question, it is necessary to determine the nature and purpose of a motion for alimony pendente lite.

The authority of a court to award alimony, whether permanent or pendente lite, is found in Section 452.070 RSMo 1949, V.A.M.S., the pertinent part of which reads: 'When a divorce shall be adjudged, the court shall make such order touching the alimony and maintenance of the wife, * * * as, from the circumstances of the parties and the nature of the case, shall be reasonable, * * *. The court, on the application of either party, may make such alteration, from time to time, as to the allowance of alimony and maintenance, as may be proper, and the court may decree alimony pending the suit for divorce in all cases where the same would be just, whether the wife be plaintiff or defendant, and enforce such order in the manner provided by law in other cases.'

The cases are legion that, under this statute, the wife may be allowed temporary alimony pending a trial of the case on the merits, or pending appeal. It is also held that within the broad category of alimony pendente lite falls allowances for suit money, support and attorney's fees, and that such allowances are made to the wife and not to her attorney or to someone she may become indebted to in connection with the trial or appeal, because such persons are not parties to the action. Knebel v. Knebel, Mo.App., 189 S.W.2d 464; Bovard v. Bovard, 233 Mo.App. 1019, 128 S.W.2d 274.

It must be kept in mind that prior to the adoption of our Married Women's Act, Section 451.250 et seq., RSMo 1949, V.A.M.S., the right of the wife to alimony pendente lite was absolute, and it was allowed as a matter of course. Since that time, the right of the wife to such allowances depends upon her financial necessities, and the financial ability of the husband. Robertson v. Robertson, 137 Mo.App. 93, 119 S.W. 533; Rutledge v. Rutledge, 177 Mo.App. 469, 119 S.W. 489; and Gregg v. Gregg, 272 S.W.2d 855. It is uniformly held that if a wife has sufficient funds to support herself and to properly prosecute her case or her defense, then she is not entitled to alimony pendente lite. Hopkins v. Hopkins, Mo.App., 260 S.W.2d 833, 835; Summers v. Summers, Mo.App., 222 S.W.2d 514; Whitwell v. Whitwell, 318 Mo. 476, 300 S.W. 455. Consequently, when the wife files a motion for alimony pendente lite, there must be a hearing and a determination of her financial needs and the financial ability of her husband to provide such necessities.

It is well established, in this state, that in an action for divorce the circuit court has jurisdiction, 'after a final decree has been entered and an appeal allowed, to hear and determine the wife's application for alimony and suit money pending the appeal. The taking of an appeal in the principal action does not divest the circuit court of its jurisdiction to adjudicate the matter of alimony and suit money pending the appeal. The question of alimony and suit money pending the appeal is referable to the principal question, but it is a separate and distinct matter, not arising until after entry of final judgment and calling for an order from which a separate and distinct appeal will lie. * * * An application for alimony and suit money pending an appeal requires a separate hearing and in all likelihood evidence different from and in addition to that adduced upon the principal trial. * * * The orders, decrees and judgments upon the motions in fact adjudicate new and different matters and rights irrespective of the matters and rights adjudicated in the principal proceeding.' Simms v. Simms, Mo.Sup., 253 S.W.2d 814, 816. See also, Hayes v. Hayes, 363 Mo. 583, 252 S.W.2d 323.

In State ex rel. Gercke v. Seddon, 93 Mo. 520, 6 S.W. 342, the trial court had allowed the wife alimony pending the appeal of the divorce case on the merits, but denied the husband the right of appeal from that judgment of allowance. He filed mandamus to compel the court to allow the appeal. In discussing the nature and effect of such an order, the court said 93 Mo. 523, 6 S.W. 343: 'The power of the court to order and enforce and allowance for alimony pendente lite, though an adjunct of the action of divorce, is an independent proceeding, standing upon its own merits, and in no way dependent upon the merits of the issues in the divorce suit, or in any way affected by the final decree upon those merits. It grows, ex necessitate rei, out of the relations between the parties to the controversy, and has nothing to do with the merits of that controversy. The order making such allowance in this case was a final and definite order, disposing of the merits of that proceeding in the circuit court, and the relator [husband] was...