Rutlader v. Rutlader

• Decision Date: 06 February 1967
• Docket Number: No. 24013,24013
• Citation: 411 S.W.2d 826
• Parties: James RUTLADER, Respondent, v. Eleanor RUTLADER, Appellant.
• Court: Missouri Court of Appeals

Page 826

411 S.W.2d 826

James RUTLADER, Respondent, v. Eleanor RUTLADER, Appellant.

No. 24013.

Kansas City Court of Appeals, Missouri.

Feb. 6, 1967.

Edgar J. Keating, Kansas City, for appellant.

J. K. Owens, Kansas City, for respondent.

BLAIR, Judge.

In this suit for divorce, the trial court dismissed the husband's petition. It granted the wife a divorce on her cross bill, the custody of their two children and $17.50 per week for the maintenance of each child. It denied her attorney's fees and alimony and she appeals from this last action of the court. The court undertook also to grant her another award by including in the decree this provision: 'It is further ordered and adjudged by the court that the defendant (wife) be and she is hereby given one-half of the property when it is sold, together with $270.00 which is her part of the rental until sold.' The transcript justifies the assumption that the 'property' to which the decree referred was the home in which the husband and wife lived before the separation, but, from the transcript, we cannot determine how title to this home was held, whether by the entireties or in some other way. Nevertheless, neither the husband nor the wife asks on this appeal that the provision of the decree undertaking to grant the wife one-half of this property when it is sold, together with $270.00, her part of the rental, be set aside or altered in any manner. The only points relied on in the wife's brief, and she is the appellant, are verbatim: '1. The court erred in refusing to grant any alimony' and '2. The court erred in refusing to grant defendant any attorney's fees.' The Supreme Court has held that, even if the decree affected title to real estate, V.A.M.S., Constitution, Art. V, Sec. 3, it was without jurisdiction because the husband did not appeal and, therefore, consented to this disposition of the 'property' and because this appeal by the wife presents no 'live' issue calling for an adjudication of title and asks no decree which would affect or operate on title to this real estate. It transferred the cause to this court. Rutlader v. Rutlader, Mo., 407 S.W.2d 906. Thus our jurisdiction of this appeal has been established by the Supreme Court and we now proceed to its exercise.

Mrs. Rutlader's cross bill charged general indignities. The trial court dismissed Mr. Rutlader's petition and granted Mrs. Rutlader a divorce on her cross bill, as we have said. On this appeal, as we have indicated, its action in granting her a divorce is not questioned by Mr. Rutlader, although we may say that we have reviewed the record on the law and the evidence and would reach the same result if this action of the trial court were questioned. Civil Rule 73.01(d), V.A.M.R.; 11 Mo.Digest, Divorce, k184(6). Its action in granting Mrs. Rutlader custody of the two children and $17.50 per week for the support of each child or $1,820.00 per year for the support of both is also unquestioned. The only question confronting us is whether the trial court abused its discretion by failing to grant Mrs. Rutlader alimony and an attorney's fee.

Allowances of alimony and an attorney's fee to a wife who is granted a divorce are not mandatory, but an application for such an allowance is an appeal to the sound discretion of the court, Ridgley v. Ridgley, Mo.App., 370 S.W.2d 679; Kaye v. Kaye, Mo.App., 327 S.W.2d 496; 11 Mo.Digest, Divorce, k223 and 235, and that discretion must be exercised always in accordance with established principles and in view of the circumstances of each particular case. Simmons v. Simmons, Mo.App., 280 S.W.2d 877; Ridgley v. Ridgley, Mo.App., 370 S.W.2d 679; Knebel v. Knebel, Mo.App., 189 S.W.2d 464. The exercise of that discretion is subject, of course, to review and it will be corrected on appeal if it has been manifestly abused. Gross v. Gross, Mo.App., 319 S.W.2d 880; Kaye v. Kaye, Mo.App., 327 S.W.2d 496; Richardson v. Richardson, Mo.App., 288 S.W.2d 20; 11 Mo.Digest, Divorce, k184(6), (7), (10). Attorney's fees fall in the broad category of 'alimony', Hogsett v. Hogsett, Mo.App., 409 S.W.2d 232; Noll v. Noll, Mo.App., 286 S.W.2d 58; Howard v. Howard, Mo.App., 300 S.W.2d 853; Bovard v. Bovard, 233 Mo.Spp. 1019, 128 S.W.2d 274, and awards both of alimony and attorney's fees are governed by the same established principles. Ridgley v. Ridgley, Mo.App., 370 S.W.2d 679.

Concerning attorney's fees, a husband will not be permitted to prosecute or defend a divorce proceeding without affording his wife the means to defray her expenses of litigation, if she lacks adequate means of her own. Orrick v. Orrick, Mo.App., 269 S.W.2d 153; 11 Mo.Digest, Divorce, k224. Of course, if she does have adequate means in her own right to defray her expenses in litigating a divorce proceeding, she cannot require her husband to pay those expenses, Lehr v. Lehr, Mo.App., 264 S.W.2d 37; McKenzie v. McKenzie, Mo.App., 306 S.W.2d 588, but this does not mean that she must be in a state of destitution before she is entitled to an allowance for attorney's fees. Graves v. Wooden, Mo.App., 291 S.W.2d 665; Price v Price, Mo.App., 281 S.W.2d 307. In 'Determining whether or not a wife is possessed individually of adequate means, to which she may reasonably be required to resort for payment of her attorney's fees, in instances where the wife has some means, courts compare the means of the wife with those of the husband to ascertain whether it is reasonable to require her to look to her own means or to permit her to look to her husband's means. * * * This is equitable for a wife of little means oftentimes should have the right to look to a husband of larger means for the payment of her attorney's fees, if the disparity in means is great enough.' Mathews v. Mathews, Mo.App., 337 S.W.2d 529; Gregg v. Gregg, Mo.App., 272 S.W.2d 855; Wonneman v. Wonneman, Mo.App., 305 S.W.2d 82; McKenzie v. McKenzie, Mo.App., 306 S.W.2d 588; Adkins v. Adkins, Mo.App., 325 S.W.2d 364.

Concerning alimony, it is no answer that the husband, if the wife deserves alimony, temporarily is unable to pay, if his past earning capacity and his reasonable prospects for paying in the future do not convince that his present inability will remain static and if there is a prospect that he will be able to pay what he ought to pay sometime in the future. Lampman v. Lampman, Mo.App., 367 S.W.2d 28. In such circumstances, the court is authorized to allow her at least nominal alimony, to be increased in the future if the husband's financial status improves, for if no alimony is allowed when the divorce is granted, none can ever be allowed after the decree becomes final, Lampman v. Lampman, Mo.App., 367 S.W.2d 28; Herbert v. Herbert, Mo.App., 221 Mo.App. 201, 299 S.W. 840; 11 Mo.Digest, Divorce, k231, 234, and this would be a plain injustice. Such a ruling would be an injustice not alone to the wife but to the state as well. For a suit for divorce is not a mere controversy between the parties, but the state, although not named in the pleadings, occupies the position of a third party. McMakin v. McMakin, 68 Mo.App. 57; Milster v. Milster, 200 Mo.App. 603, 209 S.W. 620. The state has a right to its day in court when a suit for divorce and its incidents are tried and adjudged, Bishop v. Bishop, Mo.App., 162 S.W.2d 332, and courts should, in a large degree, it is said, insure that its interests are protected, Milster v. Milster, 200 Mo.App. 603, 209 S.W. 620, for society has an interest in every marriage, Wagner v. Shelly, Mo.App., 235 S.W.2d 414; 11 Mo.Digest, Divorce, k11, and a right to avoid, if possible, a divorcement of the wife, which results in her becoming a charge on the state, if she is the innocent and injured party, and in need of support from a former husband who is able to provide it.

Determining whether alimony should be awarded, and if it is awarded, in what amount, various factors almost invariably enter into consideration, such as the financial status of the parties; the extent of their individual estates; their incomes; their obligations; their necessities; the contributions of each to the property accumulated during the marriage; the likely future prospects of each; their ages; their health; their ability to engage in gainful occupations; their children and the disposition made of their custody; the duration of the marriage; and whether it was one of affection or convenience; and the conduct of the parties which caused the divorce, and the comparative responsibility of each for it. Simon v. Simon, Mo., 248 S.W.2d 560; Carr v. Carr, Mo., 232 S.W.2d 488; Knebel v. Knebel, Mo.App., 189 S.W.2d 464. What we say regarding the principles governing an award of alimony is likewise applicable to an allowance of an attorney's fee, for, as we have observed, the same considerations govern the award of both. Simon v. Simon, Mo., 248 S.W.2d 560; Arnold v. Arnold, Mo., 222 S.W. 996; Graves v. Wooden, Mo.App., 291 S.W.2d 665. These general principles ought to bring this controversy into perspective after we recite the relevant facts.

We owe it to the attorneys who present this case in this court to notice that the record was made by different attorneys in the trial court.

The parties were married on June 28, 1953, and separated on June 1, 1961. This was the first marriage for both. After the marriage, Mrs. Rutlader worked until the first child was born on July 9, 1954. The second child was born on August 6, 1955. At the time of the trial, the children were about 8 and 7 years old respectively. Prior to the marriage Mrs. Rutlader worked for the federal government and her 'take-home pay' was $208.00 per month and it continued in that amount after the marriage until the first child was born. After the marriage, she gave all of her take-home pay to her husband during the thirteen months before the arrival of the first child. At the time of the trial she had no income from any source except a temporary allowance previously made by the court for the...