Robinson v. Robinson

• Decision Date: 03 March 1913
• Citation: 154 S.W. 162,168 Mo. App. 639
• Parties: ROBINSON v. ROBINSON.
• Court: Missouri Court of Appeals

154 S.W. 162

168 Mo. App. 639

ROBINSON v. ROBINSON.

Springfield Court of Appeals. Missouri.

March 3, 1913.

DIVORCE (§ 308) — MAINTENANCE OF CHILDREN — ORDER AFTER DIVORCE — STATUTES.

Rev. St. 1909, § 2375, providing that when a divorce is adjudged such order shall be made touching custody and maintenance of the children as from the circumstances shall be reasonable, and, on application of either party, the court may make such alteration, from time to time, as to maintenance as may be proper, is remedial, and therefore should be liberally construed to allow, after the divorce, an order for maintenance of the children, though no such order was made at the time of the divorce; there being a common-law duty of the father to maintain and provide for the children.

Appeal from Circuit Court, Jasper County; Joseph D. Perkins, Judge.

Motion by plaintiff, in the divorce suit of Bertie Marie Robinson (now Bertie Marie Bennett) against Budd M. Robinson, to modify the decree as to maintenance of their child. Motion was granted, and defendant appeals. Affirmed, and cause certified to Supreme Court.

At the June term of the Jasper county circuit court in the year 1907 the plaintiff herein obtained a divorce from the defendant, and in the decree was awarded alimony in gross in the sum of $7,000, together with certain real estate in Newton county, and the care and custody of a child of the marriage, Francis Henry Robinson, who at the time of the granting of the divorce was about nine years of age. The money was paid and the land deeded by the defendant to the plaintiff. Both plaintiff and defendant remarried; the plaintiff moving to the state of Oregon and taking with her the child. No order or provision was made in the original divorce proceeding for the maintenance of the child. At the June term of said court in the year 1912 a motion to modify the divorce decree was filed, asking that defendant be required, under the order of the court, to pay a sufficient amount to maintain and educate the child, and proper notice of this motion was served on the defendant. A motion for a change of venue, filed by defendant, being denied, the court heard the evidence and made the following order modifying the decree (formal parts omitted): "Now comes on for hearing the plaintiff's motion to modify the divorce decree heretofore entered herein. By consent the same is taken up, and being seen, heard, and fully understood by the court, and, the court hearing the evidence adduced by both parties, duly considering the same, being now well and fully advised in the premises, said motion is by the court sustained, and the plaintiff is allowed the sum of $500 per annum for the support, maintenance, and education of the child, Francis Henry Robinson, to be paid in quarterly payments of $125 each, the first payment to become due and payable on the 10th day of July, 1912, and a payment to become due and payable each quarter thereafter until the further order of this court. It is therefore ordered and adjudged by the court that the plaintiff have and recover of and from the defendant, for the support, maintenance, and education of the infant child, Francis Henry Robinson, the sum of $500 per annum, to be paid in quarterly payments of $125 each, the first payment to become due and payable on the 10th day of July, 1912, and a payment to be made on the first of each quarter thereafter, together with the costs of this hearing, and if the payments are not paid when due, let execution issue therefor." A motion to set aside this order being denied over defendant's exception, an appeal to this court was perfected. The original decree merely granted the divorce and fixed the alimony in gross, and gave the care and custody of the child to the mother, and no order, decree, or judgment was entered with reference to the maintenance of the child.

Spencer, Grayston & Spencer, of Joplin, for appellant. Fred. W. Kelsey, of Joplin, for respondent.

FARRINGTON, J. (after stating the facts as above).

It is contended on behalf of the appellant that because of the failure of the court in the original divorce decree to provide for the maintenance of the child, the court, under sections 2375 and 2381, R. S. 1909, had no jurisdiction to modify the decree so as to provide for the maintenance of the child. The respondent contends that the order awarding the care and custody of the child necessarily, and as an incident thereto, gave the court power and jurisdiction at any time, under the facts referred to, to make the order made in this case.

Section 2375, R. S. 1909, is as follows: "Alimony and Maintenance. — When a divorce shall be adjudged, the court shall make such order touching the alimony and maintenance of the wife, and the care, custody and maintenance of the children, or any of them, as, from the circumstances of the parties and the nature of the case, shall be reasonable, and when the wife is plaintiff, may order the defendant to give security for such alimony and maintenance; and upon his neglect to give the security required of him, or upon default of himself and his sureties, if any there be, to pay or provide such alimony and maintenance, may award an execution for the collection thereof, or enforce the performance of the judgment or order by sequestration of property, or by such other lawful ways and means as is according to the practice of the court. The court, on the application of either party, may make such alteration, from time to time, as to the allowance of alimony and maintenance, as may be proper, and the court may decree alimony pending the suit for divorce in all cases where the same would be just, whether the wife be plaintiff or defendant, and enforce such order in the manner provided by law in other cases."

Section 2381, R. S. 1909, is as follows:

"Decree of Divorce Not Subject to Review — Otherwise as to Alimony. — No petition for review of any judgment for divorce, rendered in any cause arising under this article, shall be allowed, any law or statute to the contrary notwithstanding; but there may be a review of any order or judgment touching the alimony and maintenance of the wife, and the care, custody and maintenance of the children, or any of them, as in other cases."

It is contended by appellant that under section 2375 there could be no alteration of an order never made, and that under section 2381 there could be no review of an order or judgment never made.

An examination of the authorities in this state reveals that the St. Louis Court of Appeals, in the cases of Lukowski v. Lukowski, 108 Mo. App. 204, 83 S. W. 274, and Seely v. Seely, 116 Mo. App. 362, 91 S. W. 979, sustains the position taken by the appellant, and that the Kansas City Court of Appeals, in the case of Shannon v. Shannon, 97 Mo. App. 119, 71 S. W. 104, sustains the position taken by the respondent, and it necessarily devolves upon us to certify this question to the Supreme Court for final determination.

All the decisions in this state on this question hold that the statutes above referred to are merely cumulative of the common law; that the granting of this mode of procedure to procure maintenance for the child does not take away from the father the common-law duty and obligation to maintain and provide for the child, nor take away from the custodian of the child, or any other person furnishing the child with necessaries, the right to sue the father for...