Prichard v. Prichard

• Decision Date: 24 May 1915
• Docket Number: No. 11231.,11231.
• Parties: PRICHARD v. PRICHARD.
• Court: Missouri Court of Appeals

176 S.W. 1124

189 Mo. App. 470

PRICHARD v. PRICHARD.

No. 11231.

Kansas City Court of Appeals Missouri.

May 24, 1915.

Appeal from Circuit Court, Mercer County; Geo. W. Wannamaker, Judge.

Action by Dora A. Prichard against Robert R. Prichard. There was a judgment for plaintiff, and thereafter defendant moved to vacate the judgment. From an order denying the motion, defendant appeals. Reversed and remanded.

Eldon C. Orton, of Princeton, for appellant. Ira B. & A. M. Hyde, of Princeton, for respondent.

ELLISON, P. J.

Plaintiff and defendant were husband and wife both residing in this state. They had two children, one, a daughter, over age, who has no interest involved in this action, the other, a minor son. They had become estranged and were not living together as man and wife, he having abandoned her and lived in adultery, when in 1909 she brought an action against him for maintenance, on account of abandonment, under the provisions of section 8295, R. S. 1909. She obtained judgment against him in September, 1909; the son being then fifteen years old. Defendant left Missouri and took up a residence in Oklahoma; and in May, 1911, he obtained a divorce in that state from plaintiff, she appearing to the action. The divorce was granted for "her fault" on account of abandonment. No claim was made by her for alimony, and none was allowed. The following month, June, 1911, the son died, and something over two years thereafter, at the December, 1913, term of the circuit court of Mercer county, Mo., defendant filed a motion to vacate the judgment of allowance on the ground that the son was dead and that he had obtained a divorce from plaintiff for her fault. The court refused to vacate the allowance, but modified it so as to require defendant to pay to plaintiff $12½ per month, instead of $25. Defendant thereupon appealed.

There is considerable discussion by counsel for plaintiff that we think not applicable. The case does not present questions of law bearing upon marriage settlements, or deeds of separation. The case must be considered from the standpoint of the above-cited statute on abandonment by a husband of his wife and family and failure to support them. That statute was the foundation of the judgment in controversy; and its construction as affected by the death of the son and the divorce obtained by defendant is what we should consider. The statute (Rev. St. 1909, § 8295) reads:

"When the husband, without good cause, shall abandon his wife, and refuse or neglect to maintain and provide for her, the circuit court, on her petition for that purpose, shall order and adjudge such support and maintenance to be provided and paid by the husband for the wife and her children, or any of them, by that marriage, out of his property, and for such time as the nature of the case and the circumstances of the parties shall require, and compel the husband to give security for such maintenance, and from time to time make such further orders touching the same as shall be just, and enforce such judgment by execution, sequestration of property, or by such other lawful means as are in accordance with the practice of the court; and as long as said maintenance is continued, the husband shall not be charged with the wife's debts, contracted after the judgment for such maintenance."

It is the theory of plaintiff that her original judgment of maintenance was perpetual during her life, and not even subject to modification in amount, except after the death or majority of the son. It is in these words: "That the plaintiff is entitled to the sum of $25 monthly from January 1, 1910, out of the rent of said land (the land being life estate in 320 acres in Mercer county, Mo., for maintenance of herself and said son until said son is 21 years of age, and until the further order of the court. And by agreement it is therefore considered and adjudged, and decreed by the court, that the plaintiff have and recover of the defendant the sum of $25 monthly from the 1st day of January, 1910, until said son, Neil Prichard,...