Riggin v. Riggin
| Decision Date | 17 December 1963 |
| Docket Number | No. 31460,31460 |
| Citation | 373 S.W.2d 633 |
| Parties | Myrtle RIGGIN, (Plaintiff) Respondent, v. Raymond RIGGIN, Jr., (Defendant) Appellant. |
| Court | Missouri Court of Appeals |
Gregg Wm. Keegan, Jos. B. McGlynn, Jr., St. Louis, for appellant.
Thomas W. Flynn, Jr., and Willemin & Flynn, Clayton, for respondent.
FRANK D. CONNETT, Jr., Special Judge.
Defendant-appellant father and plaintiff-respondent mother were married on June 21, 1941, in St. Louis, Missouri. A girl named Carole was born of this marriage on August 13, 1943. On December 12, 1951, in St. Louis County, plaintiff obtained a divorce from defendant and received custody of Carole. She was allowed alimony in the amount of $50.00 per month and child support in the amount of $75.00 per month.
The parties entered into a property settlement which included no income producing property and from which plaintiff received the home, a $12,000 house ($3600 equity). She assumed the mortgage payments on the house of $75.00 per month which were later increased to $104.00 per month by reason of improvements and repairs made to the house by plaintiff.
In August 1961, plaintiff filed a motion to modify the child support allowance and on October 13, 1961, defendant filed a motion to modify the alimony allowance. On October 20, 1961, the two motions were consolidated and tried before the court.
The only witnesses were the plaintiff who testified as to the present condition of herself and Carole and defendant who testified, by deposition, (introduced by plaintiff) as to his present condition. There was no material conflict in the evidence. On August 21, 1962, the court without findings of fact (none were requested) denied defendant's motion to modify the alimony allowance and sustained plaintiff's motion to modify the child support allowance. It set the allowance at $45.00 per week which comes to $195.00 per month, an increase of $120.00 per month over the $75.00 per month allowed ten years earlier in the divorce decree.
Defendant appeals from the action of the trial court in both motions. He seems to contend that the evidence was insufficient to show that the defendant-husband had the ability to pay the increased child support payments and in any event the alimony payments should have been decreased because plaintiff's condition had greatly improved since the time of the divorce.
Defendant argues that since plaintiff introduced defendant's deposition into evidence as a part of her case, she is bound thereby and that the testimony therein shows that defendant cannot afford to make the payments of alimony and child support which are now required as a result of the trial court's action. Plaintiff, under the circumstances of this case, is bound by the evidentiary facts in the defendant's deposition. Orlann v. Laederich, et al., 338 Mo. 783, 92 S.W.2d 190. However, she is not bound by defendant's conclusions drawn therefrom. The trial court drew a conclusion different from that of defendant and since there was no substantial conflict in the evidence, we will proceed to review the evidence and reach our own conclusion.
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