Robinson v. Robinson

• Decision Date: 31 May 1916
• Docket Number: No. 17697.,17697.
• Citation: 268 Mo. 703,186 S.W. 1032
• Parties: ROBINSON v. ROBINSON.
• Court: Missouri Supreme Court

186 S.W. 1032

268 Mo. 703

ROBINSON v. ROBINSON.

No. 17697.

Supreme Court of Missouri, Division No. 2.

May 31, 1916.

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. Judgment was rendered by the Springfield Court of Appeals (168 Mo. App. 639, 154 S. W. 162) affirming the decree granting the motion and the cause was certified to the Supreme Court. Modified and affirmed.

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

WALKER, J.

This is an appeal from a modified decree of divorce. At the June term, 1907, of the circuit court of Jasper county the respondent obtained a decree of divorce from the appellant. The petition complied with the formal requisites in a pleading of this character, and, among other things, alleged that there was a child born of the marriage, a boy, naming him, then nine years of age. Respondent then prayed, in substance, as follows: To be divorced from the bonds of matrimony contracted with defendant; that she have the care and custody of her infant child, and that the court adjudge to her, out of the property of defendant, such support and maintenance and for such time as the nature of the case and the circumstances of the parties require, and that, if necessary, defendant be compelled to give security for such maintenance, and that the court make such further orders and judgments from time to time, touching the premises, as shall seem meet and just. The decree was rendered in conformity with this prayer, respondent being awarded $7,000 alimony in gross and certain real estate. No order was made concerning the maintenance of the child. The appellant promptly satisfied the judgment thus rendered. Five years thereafter, at the June term, 1912, of the circuit court of Jasper county, the respondent, who had, in the meantime, married and removed to the state of Oregon, taking the child with her, filed a motion to modify the decree theretofore rendered in said cause. The motion asked that the court make an order allowing respondent a sum for the education and maintenance of the child. The appellant filed an application for a change of venue, which was overruled. The court proceeded to hear evidence on the motion to modify the decree, sustained same, and allowed respondent $500 per year for the maintenance and education of the child. From this ruling the case was appealed to the Springfield Court of Appeals, and from the judgment of affirmance rendered therein (168 Mo. App. 639, 154 S. W. 162), the case was formally certified to this court on the ground that the decision rendered in said Court of Appeals was in conflict with prior rulings of the St. Louis Court of Appeals (Lukowski v. Lukowski, 108 Mo. App. 204, 83 S. W. 274; Seely v. Seely, 116 Mo. App. 362, 91 S. W. 979).

The errors assigned are: (1) That the court was without jurisdiction in making the order modifying the decree; (2) that the defendant should have been awarded a change of venue; and (3) that the amount allowed for maintenance was excessive.

I. Construction of Statutes. — The matter at issue involves the construction of sections 2375, 2381, R. S. 1909. Such portions of said sections as are pertinent to the matter under review are as follows:

"Sec. 2375. 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. * * * 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."

"Sec. 2381. * * * There may be a review of any order or judgment touching the alimony or maintenance of the wife, or the care, custody and maintenance of the children."

Respondent contends that under these sections the judgment of divorce, which contains no reference to the child other than to award its custody to the mother, may, upon motion subsequent to the term at which the judgment was rendered and after its satisfaction, be so modified as to require the father to provide for the child's support; and so the trial court held. The appellant contends that upon the facts stated no such modification can be made; that if section 2375 stood alone, it would authorize the court, only when the divorce was adjudged, to make such an order for the child's care, custody, and maintenance as from the circumstances of the parties and the nature of the case shall be reasonable; that if the sections are read together, the court is empowered to review the judgment touching the care, custody, and maintenance of the child, either at the time the divorce is granted, or during the same term or thereafter, under the limitation of the statute, if the court has, by the terms of the judgment, retained jurisdiction of the child, and not otherwise. Absolute divorce, as recognized by our law, and the consequent power of courts granting same to make provision for the care, custody, and maintenance of minor children after marriages are dissolved, is of purely statutory creation. This, however, does not necessitate a strict construction of this class of statutes, but they should be so construed, in view of the subject of legislation, as to fully effectuate the purpose of their enactment (In re Morgan, 117 Mo. loc. cit. 254, 21 S. W. 1122, 22 S. W. 913) due consideration being given, of course, to the rule in regard to the finality of judgments and the lack of the court's authority over same after the term when they were rendered. In the instant case, as stated, no reference to the child appears in the decree other than to award its custody to the mother. A cursory reading of the statute would lead to the conclusion, under the state of facts here present, that the contention of the appellant should be sustained.

This rule of law must be borne in mind, however: That regardless of divorce proceedings, when both parents are living, the primary liability for the support of a minor child is in this state, as it was at common law, upon the father. Viertel v. Viertel, 212 Mo. loc. cit. 576, 111 S. W. 579; Keller v. St. Louis, 152 Mo. loc. cit. 599, 54 S. W. 438, 47 L. R. A. 391. Cases illustrating the enforcement of this liability are far more frequent as a sequel to divorce proceedings than as independent actions. The reason is obvious. The severance of the marriage relation disrupts...