North v. North

• Citation: 100 S.W.2d 582,339 Mo. 1226
• Parties: Maud I. North, Appellant, v. Emmett P. North
• Decision Date: 14 December 1936
• Court: United States State Supreme Court of Missouri

100 S.W.2d 582

339 Mo. 1226

Maud I. North, Appellant, v. Emmett P. North

Supreme Court of Missouri

December 14, 1936

Appeal from Circuit Court of City of St. Louis; Hon. Erwin G Ossing, Judge.

Reversed.

Cullen Fauntleroy & Edwards for appellant.

(1) Postnuptial contracts of separation, such as the one under consideration, are not unlawful, and such contracts are sufficient to bar alimony and dower. Crenshaw v Crenshaw, 276 Mo. 471; Gilsey v. Gilsey, 195 Mo.App. 407; McBreen v. McBreen, 154 Mo. 323; In re Estate of Wood, 288 Mo. 605; Fisher v. Clopton, 110 Mo.App. 668. (2) The court, in an action for divorce, is without jurisdiction to decree to a wife as part or all of her alimony specific personal property of the husband, and for the same reason the husband cannot, by motion filed after a decree of divorce has been entered in her favor, divest the wife of property which had become vested in her before the motion was filed. Ecton v. Tomlinson, 278 Mo. 287; Chapman v. Chapman, 269 Mo. 663; Davison v. Davison, 207 Mo. 702; Scales v. Scales, 65 Mo.App. 292; Watts v. Watts, 304 Mo. 367. (3) The contract involved in this case is valid and binding, and such contracts have generally been upheld by the courts of the country. Carpenter v. Osborn, 7 N.E. 823; Galusha v. Galusha, 22 N.E. 1114; Storey v. Storey, 18 N.E. 329; Henderson v. Henderson, 48 L. R. A. 766; Dickey v. Dickey, 141 A. 387, 58 A. L. R. 634; Crews v. Mooney, 75 Mo. 26. (4) The rights of Mrs. North as wife of Dr. North grow out of contract, and the amount it was agreed she should receive cannot be regarded as alimony. Moore v. Crutchfield, 116 S.E. 482; Isaacs v. Isaacs, 117 Va. 730, 86 S.E. 105, L. R. A. 1916B, 648; Emerson v. Emerson, 120 Md. 584, 87 A. 1033; Pryor v. Pryor, 129 Am. St. Rep. 109; Carpenter v. Osborn, 102 N.Y. 552, 7 N.E. 823; Julier v. Julier, 62 Ohio St. 90, 78 Am. St. Rep. 698; Stanfield v. Stanfield, 22 Okla. 584, 98 P. 334; Hartigan v. Hartigan, 142 Minn. 274, 171 N.W. 925; Carr v. Carr, 171 N.W. 785; Savage v. Savage, 141 F. 346; Morris v. Patterson, 105 S.E. 25; Newbold v. Newbold, 133 Md. 170, 104 A. 366; Gloth v. Gloth, 153 S.E. 879, 71 A. L. R. 720; Keezer, Marriage and Divorce (2 Ed.), sec. 766; 2 Schouler, Marriage and Divorce (6 Ed.), sec. 1829. (5) The Missouri cases are in accord with the cases heretofore cited, and, under the law as heretofore declared by the appellate courts of this State, the decree of the court below was clearly erroneous. Young v. Thompson, 290 S.W. 85; Westfall v. Westfall, 236 S.W. 393. (6) When a wife is divorced from her husband for the misconduct of said husband she does not thereby lose her dower. R. S. 1929, sec. 331; Krenshaw v. Krenshaw, 208 S.W. 248; White v. Ingram, 110 Mo. 474. (7) Property which a wife takes by virtue of a contract, such as involved in this case, cannot be forfeited even by her subsequent misconduct. Saunders v. Saunders, 144 Mo. 482. (8) There is a defect of parties defendant in this, that the children of Dr. North are not made parties defendant nor is the trustee in the deed of trust made party defendant, and each of them was a necessary party to the full determination of this action. Haley v. Bagley, 37 Mo. 363; Eustis Mfg. Co. v. Brick Co., 84 N.E. 450.

Theodore Bruere, Jr., Amandus Brackman and James Booth for respondent.

(1) The judgment modifying the decree of alimony in this case does not divest, purport or attempt to divest from appellant any of the rights given her by her original judgment for alimony. All the present judgment does do is to modify the monthly payments of alimony awarded her by the original judgment; she still retains title and possession to all the specific property given her by the contract and agreement relied upon by her. (2) The right of the court on the application of either party to make such alterations from time to time as to the allowance of alimony and maintenance as may be proper, is one given by express statute in Missouri. Sec. 1355, R. S. 1929. (3) The mere fact that the parties may have tentatively agreed as to the amount of alimony to be awarded by the judgment of the court does not operate to take away the power and jurisdiction of the court to modify alimony founded upon the contract and agreement of the parties. Hayes v. Hayes, 75 S.W.2d 614; Brown v. Brown, 209 Mo.App. 416; Kinsella v. Kinsella, 60 S.W.2d 747; Meyers v. Meyers, 91 Mo.App. 151. (4) The contract and agreement relied upon by appellant fixing the amount of the wife's alimony was not a postnuptial separation agreement. Such agreements and contracts were merely suggestions to the court in regard to what the parties themselves had agreed upon as a proposed provision defendant should make for alimony for plaintiff. (5) It is upon the court's decree modifying the alimony that defendant's obligation to pay rests, and not upon the agreement, deed of trust or prior negotiations between the parties. (6) The judgment modifying the alimony awarded to appellant does not purport to be founded upon any agreement or contract between the parties, and after the rendition of the judgment of modification, all prior negotiations, contracts and agreements, if any, between the parties were merged in the judgment of modification. Freeman on Judgments (3 Ed.), sec. 215, p. 231; Cooksey v. Railroad Co., 74 Mo. 477; Wycoff v. Epworth Hotel Const. & Real Estate Co., 146 Mo.App. 554; Noel v. Railroad Co., 74 S.W.2d 14; Schroll v. Noe, 297 S.W. 999; State v. Cox, 19 S.W.2d 695; Kinsella v. Kinsella, 60 S.W.2d 747; Landau v. Landau, 71 S.W.2d 49. (7) The rule is a general one not only in Missouri but elsewhere, that in the absence of fraud or mistake, the court may modify a decree fixing alimony, even where judgment of modification is based upon the express agreement of the parties. 19 C. J. 271; Francis v. Francis, 192 Mo.App. 710. (8) Prior negotiations and agreements, if any, between the parties were merely advisory and not binding on the court.

OPINION

Frank, J.

This is an appeal from an order of the Circuit Court of the City of St. Louis, modifying a divorce decree as to the allowance made to the wife, which the divorce decree denominates alimony.

The divorce case was tried on July 13, 1926. The court found that plaintiff was the innocent and injured party, granted her a divorce and entered judgment in her favor and against defendant for the payment of alimony from month to month at the rate of $ 500 per month, so long as she remains single and unmarried.

On April 28, 1933, defendant filed in said cause a motion asking that the divorce decree be modified as to the amount of alimony awarded plaintiff, on the alleged ground that the changed financial condition of defendant warranted such action.

On June 30, 1933, after hearing, the court sustained defendant's motion to modify and reduced the allowance made to plaintiff in the decree, from $ 500 to $ 300 per month. Plaintiff appealed. Defendant died pending the appeal and prior to submission. The cause was revived in the name of Caroline North, executrix, who entered her appearance.

Prior to the rendition of the divorce decree, and on the same day the petition for divorce was filed, plaintiff and defendant entered into a written contract settling and adjusting all of their property rights between themselves.

The law is too well settled in this State to admit of dispute that husband and wife, in contemplation of a separation and divorce may, by valid contract between themselves, settle and adjust all property rights growing out of the marital relation, including the wife's right of dower and claim for alimony, support and maintenance. [Dorsett v. Dorsett, 90 S.W.2d 188, 194; Crenshaw v. Crenshaw, 276 Mo. 471, 208 S.W. 249; McBreen v. McBreen, 154 Mo. 323, 55 S.W. 463; In re Estate of Wood, 288 Mo. 604-5, 232 S.W. 671; Gilsey v. Gilsey, 195 Mo.App. 407, 193 S.W. 858; Young v. Thompson, 220 Mo.App. 1266, 290 S.W. 85; Rough v. Rough, 195 S.W. 501.] Postnuptial contracts of separation are not unlawful and such contract, when lawfully made, are sufficient to bar alimony and dower. Authorities, supra.

Section 1355, Revised Statutes 1929 (Mo. Stat. Ann., sec. 1355, p. 1564), provides that 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. This same statute provides that the court, on the application of either party, may make such alteration, from time to time, as to allowance of alimony and maintenance, as may be proper.

Three propositions appear to be clear, (1) that husband and wife in contemplation of separation and divorce may, by contract between themselves, settle and adjust all of their property rights growing out of the marital relation, (2) that the court adjudging a divorce to the wife shall make reasonable orders touching the alimony and maintenance of the wife, and (3) if an award of alimony is made, it is subject to future modification by the court.

The statute which authorizes the court to modify an award of alimony, does not authorize the modification of a legal contractual obligation which the husband assumes and agrees to pay his wife. So the question in this case is whether or not the $ 500 monthly allowance to the wife is an award of alimony. If it is alimony, it is subject to modification. On the other hand, if it is not alimony, but is a legal contractual obligation of the husband, then it is not subject to modification by the court. A proper determination of that question will settle this case.

The parties had a lawful right to settle all their property rights by contract between themselves which they did do. The contract is supported by a valid...