Richardson v. Richardson, 22308

• Decision Date: 07 March 1956
• Docket Number: No. 22308,22308
• Citation: 288 S.W.2d 20
• Parties: Ann Marie RICHARDSON, Appellant, v. Hartley T. RICHARDSON, Respondent.
• Court: Missouri Court of Appeals

Page 20

288 S.W.2d 20

Ann Marie RICHARDSON, Appellant, v. Hartley T. RICHARDSON, Respondent.

No. 22308.

Kansas City Court of Appeals, Missouri.

March 7, 1956.

Orr & Sapp, Edwin C. Orr, Columbia, for appellant.

Wm. H. Sapp, Sapp & Bear, Columbia, for respondent.

BROADDUS, Judge.

This is an appeal from the action of the trial court in sustaining a motion to compel appellant, Ann Marie Richardson, to satisfy two judgments for temporary alimony and attorney's fees.

On December 1, 1952, the respondent, Hartley T. Richardson, filed an action in the Circuit Court of Boone County asking to be divorced from his wife, Ann Marie Richardson. On December 4, 1952, Mrs. Richardson filed a motion in said suit for attorney's fees, suit money, and alimony pendente lite. The court sustained that motion and on December 29, 1952, made the following order: 'It is therefore ordered and adjudged by the Court that in addition to the occupancy of the house, said defendant (Ann Marie Richardson) recover of and from the plaintiff the sum of $150 per month during the pendency of this suit, together with her attorney's fee in the sum of $300 * * *.'

Thereafter, on March 28, 1953, Mrs. Richardson filed an answer and a cross-petition for separate maintenance. This case was tried on March 28th and succeeding days. Thereafter, on April 27, 1953, the court rendered its judgment in the case granting Mr. Richardson a divorce on his petition, and denying Mrs. Richardson a judgment on her cross-petition. On the same day the court allowed to Mrs. Richardson the additional sum of $700 for attorney fees.

On May 7, 1953, Mrs. Richardson filed a motion for new trial, and Mr. Richardson asked for a review of the trial court's power to increase the amount of 'suit money' without hearing evidence showing 'changed conditions.' Both motions were overruled on June 15, 1953. Mrs. Richardson appealed on June 23, 1953, on the merits; and Mr. Richardson on June 24, 1953, on said orders.

On July 7, 1953, the trial court made an order at the instance of Mrs. Richardson requiring Mr. Richardson to pay temporary alimony to her in the monthly sum of $150 pending said appeal, and the sum of $250 as a transcript fee, and the sum of $150 for printing her brief, and $300 as an additional attorney fee. This made a total attorney fee of $1,300.

The three appeals reached this court and were given our numbers 22002, 22004 and 22039. On June 7, 1954, we handed down our opinion affirming the judgment of the trial court as to the decree of divorce (case No. 22039) and likewise affirmed the orders in cases Nos. 22002 and 22004. See Richardson v. Richardson, Mo.App., 270 S.W.2d 68.

Mrs. Richardson timely filed in this court a motion for a rehearing in case No. 22039. This motion was overruled on July 7, 1954. On July 15, 1954, she filed a motion in said case asking this court to withhold its mandate until she had time to file an application in the Supreme Court for a writ of mandamus. This court withheld the mandate until August 15, 1954, but said application was never filed.

On September 15, 1954, Mr. Richardson tendered to Mrs. Richardson and her attorney, Mr. Orr, a draft for $3,370.77 in full payment of each item of the judgment-orders above set out. The breakdown of the amount shown in the draft is as follows: Allowance of $700 for Mr. Orr made April 27, 1953, with interest thereon to September 16, 1954; allowance of $300 for Mr. Orr made July 7, 1953, with interest thereon to September 16, 1954; allowance for temporary alimony at the rate of $150 per month from July 7, 1953 to July 15, 1954, together with interest; allowance of $250 to pay appeal transcript with interest thereon, and allowance of $150 to pay for printing appellant's brief, together with interest thereon.

As stated in our former opinion, 270 S.W.2d loc. cit. 72: 'Plaintiff [Mr. Richardson] paid to defendant [Mrs. Richardson] the $300 attorney fee, and also paid the temporary alimony awarded to her under the first order (that of December 29, 1952) for a period of approximately four months, or up until the day the decree of divorce was entered', April 27, 1953.)

The draft for $3,370.77 and a typewritten release, together with a transmittal letter, was left at Mr. Orr's office in his absence. A few days later, the draft was cashed by Mrs. Richardson and her attorney, Mr. Orr, but the release was returned unsigned, along with a letter attempting to justify the retention of the draft without signing the release.

Thereafter, on October 1, 1954, Mr. Richardson invoked the remedy provided by Section 511.620, V.A.M.S. by filing a motion for the release of said prior judgments. He gave due notice of his intention to apply for such an order on October 12, 1954.

On October 8, 1954 Mrs. Richardson filed a motion for additional attorney's fees and on October 12, 1954, Mr. Richardson filed a motion to dismiss the same.

On the appointed day (October 12, 1954) testimony was heard and many letters and all necessary orders were introduced in evidence. At the conclusion of the hearing the court took the case under advisement until November 18, 1954, at which time it found for Mr. Richardson and directed the clerk to release said judgment-orders. On the same day the court overruled the motion of Mrs. Richardson for additional attorney's fees.

As stated, Mrs. Richardson appealed, and her first contention is that 'the original judgment for temporary alimony made on December 29, 1952 continued to be a valid and binding judgment as long as her cross-petition remained in litigation.' That 'it is the appellant's position that she is entitled to be paid temporary alimony according to the Court's order of December 29th, for that period of time beginning April 27th and ending July 7th, 1953.'

On the other hand, the respondent asserts that: 'The husband's duty to pay temporary alimony monthly to his wife as required by the order made December 29th, 1952, was vacated and terminated on April 27th, 1953, by the final decree of divorce for the husband on his petition and against the appellant on her cross-bill for separate maintenance.'

Under the authorities, the position taken by respondent is correct. In the case of Woods v. Woods, 236 Mo.App. 855, 159 S.W.2d 320, loc. cit. 323, this court said:

'In addition to the foregoing, was the court in hearing the motion to quash the execution justified in its finding that the judgment for temporary alimony terminated on the date of the decree upon the merits of the case? This is the principal question that is presented in the appeal. The conclusion has been reached that the finding was justified and that the contention of appellant that the initial allowance for temporary alimony was an effective, continuing judgment after the decree of divorce in favor of the husband cannot be sustained. An allowance of alimony 'pending the suit for divorce' as provided in Sec. 1519, RSMo 1939 [V.A.M.S. Sec....