Pickel v. Pickel
| Decision Date | 30 December 1921 |
| Docket Number | 21,146,21,147 |
| Citation | 236 S.W. 287,291 Mo. 180 |
| Parties | ELLA M. PICKEL v. FREDERICK PICKEL, Appellant -- No. 21,146. ELLA M. PICKEL v. FRED J. PICKEL, Appellant -- No. 21,147 |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. William T. Jones Judge.
Affirmed.
Fauntleroy Cullen & Hay for appellant.
(1) It was palpable error for the court to engraft the divorce action on the maintenance case "in aid of the decree in said divorce case and in anticipation thereof." Sharpe v. Sharpe, 134 Mo.App. 278. (2) The Legislature has by enacting separate and distinct statutes given two forms of action by which the wife may force the husband to support her -- divorce and maintenance. In the first she must ask for a dissolution to obtain permanent support; in the second, she must affirm the marriage relation and claim rights under it. Therefore, the court has no jurisdiction or power to keep the maintenance case alive after the granting of a divorce, and this novel and ingenious theory that the maintenance judgment must be kept alive for the benefit of the plaintiff, who desires a divorce, is unprecedented and not sustainable under any known legal rules. (3) The entry of the decree of divorce necessarily cancels, nullifies and ends the decree of maintenance. Pritchard v. Pritchard, 189 Mo.App. 470; Creasy v. Creasy, 168 Mo.App. 98. Therefore, the only thing the court could possibly do is to overrule the motion filed in the maintenance case and grant the wife a divorce in the divorce case, allowing such alimony as would be just considering the financial responsibilities of the defendant. (4) The plaintiff should not have been given any relief in this case for the reason that the divorce case was pending at the time this motion for allowance in gross was filed. The divorce suit was filed April 24, 1917. The motion for maintenance in gross was filed June 30, 1917, so at the time this proceeding was instituted on this motion for maintenance in gross, the divorce suit was pending and undisposed of. The rule of law applicable to such a state of facts is thus stated in 1 Corpus Juris, sec. 37, p. 45, as follows: "It is a well-settled general principle of the law that the pendency of a prior action or suit for the same cause, between the same parties, in a court of competent jurisdiction, will abate a later action or suit either in the same court or in another court of the same jurisdiction." This rule is sustained by the controlling authorities. Smith v. Sedalia, 244 Mo. 107; Warder v. Henry, 117 Mo. 530; Libbe v. Libbe, 157 Mo.App. 610; State v. Hines, 148 Mo.App. 298; Tire Co. v. Webb, 143 Mo.App. 679; Walter Commn. Co. v. Gilleland, 98 Mo.App. 584. It will be noted that in the divorce case, plaintiff prays for all the relief she could possibly be given in the maintenance suit, she asking therein for alimony permanent and temporary. Having filed a divorce suit wherein she was asking for the same relief, she thereby abandoned the maintenance suit, and is precluded from maintaining same, because of the pendency of the divorce suit. Libbe v. Libbe, 157 Mo.App. 610; In re Morgan, 177 Mo. 24. (5) The filing of the divorce case and its prosecution was such an election of remedies as precludes any relief in the maintenance suit. 15 Cyc. 259 to 263; 9 R. C. L., Election of Remedies, secs. 1, 3; Kearney Milling Co. v. Union Pac., 97 Iowa 719, 59 Am. St. 434. That these two actions are inconsistent is apparent. The maintenance suit proceeds on the theory that the marriage relation continues, the divorce case proceeds on the theory that the marriage relation ceases and is to be dissolved. The filing of the divorce case is an abandonment of the maintenance action and the effect of abandonment of one action and the institution of a new one for the same relief is conclusive against any relief being granted in the case abandoned. 1 Corpus Juris, pp. 1169, 1170. (6) The allowance is excessive. The bond was substantially paid. There is substantially nothing due from William Pickel under the ten-thousand-dollar bond. By the fifth paragraph of the decree, William Pickel was given the privilege of giving bond in the sum of $ 10,000, conditioned upon the payment of sums of money falling due after the execution of the bond, and also requiring him to pay all money due up to the time the bond was executed. By the sixth, seventh and eighth paragraphs of the decree the title to the property was to be vacated and set aside, but it was not to be vacated if William Pickel would give a bond. William Pickel elected to give a bond, and, by the ninth paragraph of the decree plaintiff was enjoined from levying an execution on the property "so long as the said William Pickel shall continue to pay the money due from the plaintiff, as and when the same shall become due, to the full amount of said bond." The only possible construction of this decree is that the payment of the sums of money then due and the payment of the bond to the full amount of said bond, would vest the title to the property in dispute in William Pickel. Plaintiff had full knowledge of this alternative decree, and was fully advised that the payments made were made by William Pickel, and, therefore, is not in a position to attack the transfer of the stock from Frederick J. Pickel to William Pickel in consideration of William Pickel's assuming and paying all moneys due her at the time the bond was given and all moneys falling due to the full amount of the bond. Under the authorities it is clear that neither she, nor anybody else, can attack the validity of the retransfer, under the terms of this decree, of the property from Frederick J. Pickel to William Pickel. Torreyson v. Turnbaugh, 105 Mo.App. 439; Thompson v. Cohen, 127 Mo. 215; Byrd v. Hall, 196 Fed. (C. C. A.) 762. The judgment in the case is, therefore, excessive. The defendant, a mere laboring man, is earning $ 27.50 per week, has no property, has already expended on his ex-wife all the property he had, amounting to over $ 12,000, is now mulcted in the sum of $ 10,000 in gross. That such an allowance is excessive is so palpably plain as to be visible to the untrained eye of a layman. Fahey v. Fahey, 43 Colo. 354, 127 Am. St. 118. (7) That an allowance in a maintenance case is from month to month, and not for a gross sum, is directly sustained by the great weight of authority, and is apparent from the reading of our statute. This action and the previous action is for monthly installments and the court has no authority to allow a gross sum to cover all future time. Therein is the vital difference between actions for divorce and maintenance. Under Section 8295 of our statute, there is no authority for the allowance of a sum in gross in a maintenance suit. Kusel v. Kusel, 81 P. 296. Section 8295 declares that "the court shall order such support for the wife for such time as the nature of the case and the circumstances of the parties shall require, and from time to time make such further orders touching the same as shall be just." Under such a statute it is clear that the court, at any time, has the right to modify such decree and wipe the same out altogether, so far as it relates at least to future payments. 1 R. C. L. sec. 92, p. 946; Creasy v. Creasy, 168 Mo.App. 110; Creasy v. Creasy, 175 Mo.App. 239. A judgment for maintenance must be subject to the control of the court which entered it, and may be modified at any time. A judgment in a maintenance case for monthly sums is not such a judgment as is entitled to full faith and credit, because it is for sums falling due after the rendition of the judgment. Such a decree is not final judgment as to payments in the future. Lynde v. Lynde, 181 U.S. 183; Isreal v. Isreal, 148 Fed. (C. C. A.) 576, 9 L. R. A. (N. S.) 1168; Valequet v. Valequet, 177 F. 994; Lynde v. Lynde, 162 N.Y. 405, 48 L. R. A. 679. See, also, Mayer v. Mayer, 154 Mich. 386, 19 L. R. A. (N. S.) 345, 129 Am. St. 477. The entry of a judgment in the divorce case marks the end of the continuing judgment in the maintenance case.
BROWN, C. Ragland and Small, CC., concur. Graves, David E. Blair, and Elder, JJ., dissent.
In Banc.
-- This court has become familiar with these cases in their different aspects in Pickel v. Pickel, 243 Mo. 641, 147 S.W. 1059; Same v. Same, 251 Mo. 197; Same v. Same, 259 Mo. 202; in which it has had occasional relief from the St. Louis Court of Appeals in Same v. Same, 176 Mo.App. 673; Same v. Same, Id. 714; Same v. Same, 179 S.W. 949. The facts are so fully spread upon the records of these courts as to simplify the task of restating them. Although counsel for respondent appeared and favored us with oral argument at the hearing, it was suggested that financial consideration had prevented the filing of a brief for their client, so that we must rely entirely upon the printed abstract and brief of appellant, together with such recollection as we have of the oral argument to assist us in the formulation of our views.
The first of these cases (No. 21,146) is a proceeding in the St. Louis Circuit Court, under our statute, for divorce and alimony. The second (No. 21,147) is for the separate maintenance of the wife and child, also under our statute (Sec. 8295, R. S. 1909). The issues are so interwoven that they will be treated as integral parts of one case.
The maintenance case was instituted in the St. Louis Circuit Court by respondent on October 20, 1910. An amended petition was filed February 12, 1911. It charges (1) abandonment; (2) habitual drunkenness; (3) cruel and barbarous treatment, such as to endanger her life; (4) such indignities as to render her condition intolerable. It states that the parties were married on September 1, 1904; that on September 13, 1905, a son, ...
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