Page v. Page

• Decision Date: 04 November 1974
• Docket Number: No. KCD,KCD
• Citation: 516 S.W.2d 537
• Parties: Judith Mae PAGE, Plaintiff-Respondent, v. Donald Morton PAGE, Defendant-Appellant. 26916.
• Court: Missouri Court of Appeals

Page 537

516 S.W.2d 537

Judith Mae PAGE, Plaintiff-Respondent, v. Donald Morton PAGE, Defendant-Appellant.

No. KCD 26916.

Missouri Court of Appeals, Kansas City District.

Nov. 4, 1974.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Dec. 2, 1974.

Application to Transfer Denied Jan. 13, 1975.

Ralph E. Smith, Butler, for appellant.

Harold L. Caskey, Butler, for respondent.

Before DIXON, C.J., and SHANGLER and WASSERSTROM, JJ.

SHANGLER, Judge.

The respondent Judith M. Page sued Donald M. Page for divorce and, by separate counts, for the partition of their real and personal property. There was no contested issue as to the divorce, although the defendant filed a general denial as to all counts. The respondent was granted a divorce and custody of the eleven year old son of the marriage and the husband was awarded custody of the sixteen year old daughter, in conformity with the agreement of the parties. The court determined that another son, eighteen years of age, had been emancipated and made no order as to him. The decree also provided for the husband to pay $110 per month to the wife as support money for the younger son, and allowed $100 as temporary attorney fee. The other matters in issue, including alimony, were reserved pending sale of the real estate and partition of the personal property.

A special commissioner was appointed to sell the realty and to partition the personalty in kind between the parties. The defendant husband purchased the real estate at sale and each party was apportioned $877.50 from the proceeds. The partition of the personal property by the commissioner was approved by the parties and the court then approved the sale of the realty and the distribution of the personalty.

The court then heard evidence on the issue of alimony. The parties had been married for about twenty years. In 1963, when the husband was prompted to enter the ministry, the parties moved to California where they both enrolled in school. Mrs. Page did not complete her schooling, but took up employment while her husband attended college in preparation for the ministry. Mr. Page also worked during this period. At the time of the hearing, Mr. Page held a degree in History from Baylor University and had completed numerous credits towards a seminary graduate degree. He had served as pastor of the First Baptist Church in Butler, Missouri at an annual salary of $9,500, a position which was terminated, however, a week prior to hearing.

At the time of the hearing, Mrs. Page was employed as a dental assistant at a salary of $300 per month. She showed a rental obligation of $90 per month. Mr. Page's assets, other than mentioned, was a bank account of $120.

During the early years of the marriage, Mrs. Page's parents had loaned the parties $3,000, of which $2,000 remains unpaid, but which has been forgiven. Also, after the death of her father, Mrs. Page received $3,500 from her mother, which the parties used to improve the home. Their real estate partially secured four different notes upon which the parties were obligated to three different banks. Only the amount of the fourth note, $1,873, is disclosed by the record.

At the conclusion of the hearing, the court awarded the wife alimony in gross of $5,000, $300 additional attorney fees, $110 per month for child support, and further expressed the expectation that appellant husband would pay any indebtedness incurred prior to the divorce. In addition, the husband was ordered to pay the costs of the commissioner and all other costs and that his portion of the proceeds from the sale of the real estate be used for such payment to the extent they were available.

The appellant husband assigned two points of error on this appeal. First, he contends that the award of $5,000 alimony in gross, child support of $110 per month, and $400 in attorney fees was without support in the evidence and otherwise excessive. Second, that the order of the court that the husband pay the outstanding indebtedness of the parties was beyond his jurisdiction to make. As both of these points relate to the final order, judgment and decree of the trial court, we take them together.

We take up first the contention of appellant that the order of the court, at least to the extent that it adjudges that appellant shall pay the outstanding indebtedness of the parties, was beyond his jurisdiction and invalid. The FINAL DIVORCE DECREE extends into seven paragraphs. The first six paragraphs are in the nature of a memorandum opinion or findings. The seventh and final paragraph begins with the declaration: IT IS THEREFORE ORDERED, ADJUDGED AND DECREED is decretal and judgmental in form and substance. Paragraph five of the FINAL DIVORCE DECREE recites:

The court, after having heard the evidence and the proofs submitted on plaintiff's claim for alimony and advancements, finds that plaintiff is entitled to alimony in gross in the sum of $5,000 taking into account the expectation that defendant will pay the indebtedness to Butler State Bank and that the plaintiff is entitled to child support for the child in her custody in the amount of $110.00 per month, together with additional attorney fees in the amount of $300.00.

The appellant impugns the legal effect of the underscored language as beyond the jurisdiction of the court to have adjudicated. As we have indicated, however, this language appears in the fifth paragraph of the FINAL DIVORCE...