Poor v. Poor

• Decision Date: 21 December 1942
• Parties: Carl William Poor, Respondent, v. Ruth Poor, Appellant
• Court: Missouri Court of Appeals

167 S.W.2d 471

237 Mo.App. 744

Carl William Poor, Respondent, v. Ruth Poor, Appellant

Court of Appeals of Missouri, Springfield District

December 21, 1942

Rehearing Denied January 13, 1943.

Appeal from the Circuit Court of Barry County; Hon. Emory E. Smith Judge.

Reversed and remanded (with directions).

Royle Ellis and James E. Sater for appellant.

(1) The court was without jurisdiction to modify the terms of the contract between the parties hereto because monthly payments provided in the contract were not alimony. North v North, 100 S.W.2d 582; Bishop v. Bishop, 162 S.W.2d 332; Gilsey v. Gilsey, 193 S.W. 858, 195 Mo.App. 407; Westfall v. Westfall, 236 S.W. 393; Landau v. Landau, 71 S.W.2d 49. (2) The testimony does not justify the modification of the decree. The holdings of the appellate courts are uniform in that there must be a substantial change (financial or otherwise) of the parties since the decree was granted to permit a modification, and that the burden of showing such a condition is upon the party seeking such modification. Eakins v. Eakins, 162 S.W.2d 87; Lampe v. Lampe, 28 S.W.2d 414. (3) In a contest between parents for the custody of children, the welfare and best interests of the children are the dominant and most persuasive factors involved. In order to give the circuit court the right to modify a decree in relation to the care and custody of minor children, it is incumbent upon the movant to set up and prove by substantial evidence new facts, or changed conditions since the decree of divorce was granted. Rone v. Rone, 20 S.W.2d 545; Sanders v. Sanders, 14 S.W.2d 458; Abel v. Ingram, 24 S.W.2d 1048; Ellis v. Johnson, 218 Mo.App. 272; Knepper v. Knepper, 139 Mo.App. 493; Wells v. Wells, 117 S.W.2d 700; Haagen, 11 S.W.2d 757; Everts v. Everts, 79 S.W.2d 536. (4) It is the obligation and legal duty of the husband, when marriage is dissolved for his fault and misconduct, to provide for his wife during their joint lives, or so long as he is financially able. Bowzer v. Bowzer, 155 S.W.2d 530. And she is entitled to alimony regardless of her own estate. Stark v. Stark, 115 Mo.App. 436.

D. H. Kemp and H. A. Gardner for respondent.

(1) The stipulation called for the court to adjudge and decree the property rights of the parties; and provided that the amounts called for therein were subject to review by either party in court. The decree reserves jurisdiction by providing that said amounts are subject to review by either party in court. This amounts to a reservation of jurisdiction. 19 C. J. 270; Smith v. Smith, 157 S.W.2d 571; Meyers v. Meyers, 91 Mo.App. 151. (2) Jurisdiction vests and remains in the trial court to modify the amount awarded for support of children, even though there be no reservation of jurisdiction in the decree. Meredith v. Krauthoff, 191 Mo.App. 149, 177 S.W. 1112; Eaton v. Eaton, 237 S.W. 896; Sec. 1519, R. S. Mo. 1929. (3) In a proceeding to modify the decree, the appellate court should defer to the trial judge and his findings. Barnhart v. Barnhart, 253 S.W. 56; Schwartz v. Schwartz, 41 S.W.2d 197; Pickerel v. Pickerel, 86 S.W.2d 336; Schulte v. Schulte, 127 S.W.2d 748; Kruger v. Kruger, 107 S.W.2d 967; Marx v. Marx, 153 S.W.2d 397. (4) Alimony in this State is not a continuation of the support of the wife by the husband, but the allowance of a sum of money in gross or in installments which will fairly and reasonably compensate her for the loss of her support by the annulment of the marriage contract. Nelson v. Nelson, 282 Mo. 412, 221 S.W. 1066. (5) The court should consider in awarding alimony not only the value of the husband's estate, but the source from which it came and how far, if at all, the wife contributed thereto. Harris v. Harris, 208 Mo.App. 628, 235 S.W. 823; Crenshaw v. Crenshaw, 276 Mo. 471, 208 S.W. 249; Metcalf v. Metcalf, 102 N.W. 79. (6) The conduct of the parties is a circumstance which should be considered in the allowance of permanent alimony. Viertel v. Viertel, 212 Mo. 562, 111 S.W. 579. (7) The discretion used by the trial court in awarding alimony should not be disturbed in the absence of abuse. 19 C. J. 274; Kelley v. Kelley, 290 S.W. 624; Hunnell v. Zinn, 184 S.W. 1154. Permitting the children to remain in a home where there were improper influences against the wishes of the father was sufficient to warrant changing their custody to the father. In re Krauthoff, 177 S.W. 112; Baer v. Baer, 51 S.W.2d 873.

Fulbright, J. Blair, P. J., and Smith, J., concur.

OPINION

FULBRIGHT

This is an action to modify a divorce decree rendered in Barry County, March 25, 1936, with respect to the care and custody of minor children and property settlement made with the wife and approved by the court. Judgment for plaintiff (respondent) and defendant appeals.

The respondent, Carl W. Poor, filed suit for divorce against Ruth Poor in the Barry County Circuit Court, returnable to the March Term, 1936. Appellant filed her answer and cross bill.

There were two children by the marriage, Carl William, Jr. and James Wallace, being six years of age and eleven months of age, respectively, at the time the divorce was granted.

Prior to the granting of the divorce, respondent and appellant entered into the following written contract:

"It is hereby stipulated and agreed by and between the plaintiff and the defendant in the above entitled cause as follows:

"That if the circuit court shall find the issues in favor of the defendant upon her answer and cross bill filed in this cause, the decree and judgment shall adjudge the property rights in gross as follows:

"(a) Defendant shall have the care and custody of the minor children, the plaintiff given the right and privilege of visiting and looking after said children at all reasonable hours.

"(b) Plaintiff to pay to defendant for her support and that of their minor children the sum of $ 100.00 per month, said sum to be paid on or before the 10th day of each and every month, but in the event that defendant should remarry, plaintiff is to pay the sum of $ 50.00 per month for the support of the children, said amount subject to review by either party in the court.

"(c) Plaintiff to convey to defendant, Ruth Poor, by general warranty deed, 2 1/2 acres being a part of SE SE in Section 28, Township 24, Range 29, Barry County, Missouri, subject to an encumbrance of $ 1500 payable in monthly installments; plaintiff agreeing to pay the monthly payments for the next ensuing 18 months from this date, the balance defendant assumes and agrees to pay.

"(d) Plaintiff further agrees to hold the defendant harmless by reason of any and all notes she has up to this date signed with the plaintiff and others, except the note described in paragraph "c".

"(e) Defendant to have all household and kitchen furniture and fixtures in the home now occupied by defendant.

"(f) Plaintiff agrees to pay all court costs including defendant's attorney fees."

Upon a hearing, Ruth Poor, the appellant herein was granted a decree of divorce, together with the care and custody of the two minor children, which said decree is in words and figures as follows:

"Now on this day this cause coming on to be heard the plaintiff appears in his own proper person and by attorney, D. H. Kemp, and the defendant appears in her own proper person and by her attorneys, James E. Sater and Royal Ellis, the defendant having filed her answer and cross-complaint, and the plaintiff having withdrawn his charges, the cause and matter is submitted to the Court for hearing, the Court after hearing the evidence and all things being fully seen and understood and being fully advised in the premises the Court finds that the defendant is the innocent and injured party and is entitled to the relief prayed for in her answer and cross-complaint, and doth order that she be and is hereby absolutely divorced from the bounds of matrimony contracted with plaintiff, and that she be and is hereby restored to all the rights and privileges of an unmarried person, and that she have the care and custody of the two minor children, Carl William Poor, Jr., and James Wallace Poor, mentioned in the petition and answer and cross-bill, and that plaintiff be given the right to visit said children at all reasonable times and places.

"It is further ordered and decreed by the Court that the property rights in gross are adjudged that plaintiff pay to defendant for her maintenance and that of said minor children the sum of $ 100 per month, to be paid on or before the 10th day of each and every month hereafter, so long as defendant has the care and custody of said minor children or until defendant remarries, but that if defendant does remarry in the future, then in that event plaintiff is to pay to defendant the sum of $ 50 per month for the maintenance of said minor children on or before the 10th day of each and every month, said amounts subject to review by either "party in court, and that if any of said monthly allowances are not paid on or before the 10th day of each and every month that execution may issue therefor.

"It is further ordered and decreed by the Court that plaintiff convey by warranty deed to defendant the following described real estate situate in the County of Barry, State of Missouri, to-wit: Part of the Southeast Quarter of the Southeast Quarter, Section 28, Township 24, Range 29, containing 2 1/2 acres, subject to an encumbrance of $ 1500.00, payable in monthly installments, and that plaintiff is ordered to pay said monthly installments for the next ensuing 18 months from this date, and that defendant pay the remaining installments upon said encumbrance.

"It is further ordered and decreed that defendant is to have all the household and kitchen furniture and equipment in the home now occupied by ...