Schulte v. Schulte

• Decision Date: 02 May 1939
• Docket Number: No. 24605.,24605.
• Citation: 127 S.W.2d 748
• Parties: SCHULTE v. SCHULTE.
• Court: Missouri Court of Appeals

127 S.W.2d 748

SCHULTE v. SCHULTE.

No. 24605.

St. Louis Court of Appeals. Missouri.

May 2, 1939.

Appeal from St. Louis Circuit Court; Eugent J. Sartorius, Judge.

"Not to be reported in State Reports."

Divorce action by Arthur C. Schulte against Cora M. Schulte, wherein defendant filed a cross-bill. Decree was entered granting defendant a divorce on her cross-bill, together with custody of a minor child born of the marriage and alimony and maintenance of $45 per month. Subsequently, the plaintiff filed a motion for modification of the decree to relieve him from the obligation to make further payment for alimony and maintenance, and defendant filed a motion for an order nunc pro tunc correcting the decree. From a judgment granting the plaintiff's motion and overruling the defendant's motion, the defendant appeals.

Reversed, and cause remanded, with directions.

Rassieur, Kammerer & Rassieur, of St. Louis, for appellant.

Joseph T. Davis, of St. Louis, for respondent.

BECKER, Judge.

Respondent husband, plaintiff below, filed an action for divorce, to which his wife, appellant here, filed a cross bill. On November 22, 1916, the wife was granted a divorce on her cross bill, together with the custody of a minor child born of the marriage and alimony and maintenance of $45 per month.

In 1925 the wife filed a motion in the circuit court in which the case had been tried, seeking an increase in the allowance of $45 per month granted her as "alimony and for the support and maintenance of the minor child. * * *" Said motion was overruled, as was likewise a motion filed in 1925 by the husband seeking to decrease the allowance for alimony and maintenance and to award the custody of the child to him.

On August 22, 1936, the husband again filed a motion to modify the divorce decree seeking relief from the obligation to pay the wife any further alimony or maintenance for the son, assigning as the reason therefor the majority of the son and that his own financial condition had changed.

On November 23, 1936, defendant wife filed a motion seeking an order nunc pro tunc correcting the decree of November 22, 1916, which awarded her the divorce and "as and for her alimony and for the support and maintenance of said minor child the sum of $45 per month, * * *" by striking from the decree the words "and for support and maintenance of said minor child." As the basis of the claim to such nunc pro tunc order it is alleged that the clerk, in writing up the decree from the memorandum which the judge entered in his docket, erroneously inserted the phrase sought to be deleted.

On December 11, 1936, the motion of plaintiff husband to modify the decree, and the motion of defendant wife for an order nunc pro tunc to correct the decree, were heard and taken under advisement, and on February 5, 1937, the circuit court sustained the husband's motion to modify the decree and "abrogated from this day" the allowance of $45 per month for the wife's alimony and for the support and maintenance of the child born of the marriage, and overruled the motion of the wife for a nunc pro tunc order correcting the record. In due course the defendant wife appealed.

We take up first the assignment of error that the trial court erred in overruling the motion of defendant wife for the nunc pro tunc order.

The record discloses that on November 22, 1916, at the conclusion of the hearing of the divorce case upon the husband's bill and the wife's cross bill, the trial judge entered the following minute on his docket: "Plff's bill dismissed. Deft granted decree on Cross-Bill, with custody of minor child alimony $45.00 per mo beginning Nov. 22; plff to have child bet 2 & 5 P. M. alternate Wednesdays & Sundays."

The circuit clerk in writing up the record entry proper set out inter alia the following: "* * * and that she have and recover of the plaintiff, as and for her alimony and for the support and maintenance of said minor child, the sum of forty-five ($45.00) dollars per month, until the further order of the court, * * * and that in default of the payment of said costs or of any of the monthly installments of alimony and for the support and maintenance of said minor child, awarded as aforesaid, as and when the same become due and payable, execution issue therefor."

Section 1355, Rev.St.Mo.1929, Mo.St. Ann. § 1355, p. 1564, provides, among other things, that "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 power to make a correction of a judgment nunc pro tunc is a power inherent in every court of record, and is wholly outside of any statute. Loring v. Groomer, 110 Mo. 632, 19 S.W. 950; In re Tompkins Estate, Mo.App., 50 S.W.2d 659. But there is a presumption that a judgment entered of record is the judgment actually rendered by the court and cannot be set aside at a subsequent term on the ground of clerical mistake or misprision, unless something in the record, or the judge's docket, or the clerk's minutes, or papers on file, shows such mistake and in what it consists. Belkin v. Rhodes, 76 Mo. 643; Wooldridge v. Quinn, 70 Mo. 370; Fletcher v. Coombs, 58 Mo. 430; In re Tompkins Estate, supra.

It will be noted that there is no conflict between the decree as entered and the entry in the judge's docket. The clerk used the latter as the foundation for the formal decree necessary to be entered therefrom, in light of the attendant facts in the case. The minutes in the judge's docket, in our view, fail to show that the record is in fact incorrect. In reaching our conclusion we have in mind that the judgment appearing on the permanent record is in exact accord with the prayer in defendant's cross bill, and that in 1925 the defendant wife filed a motion in the circuit court to increase the alimony allowance, which concluded as follows: "Wherefore, defendant prays for an order increasing the amount required to be paid by plaintiff to defendant for her alimony and for the support and maintenance of the minor child of said parties, from the sum of $45 per month, the amount heretofore ordered to be paid, to such sum as to the court may appear adequate for the purposes aforesaid; and for such further orders and decrees in the premises as to the court may seem meet and proper." Furthermore the defendant wife made no move toward correcting the alleged error in the original decree for more than twenty years, and then not until the minor son had become of age, and the husband had filed a motion to stop any further payment of alimony because of alleged changed condition in his financial situation, and because the son had reached his majority.

The action of the court in overruling the wife's motion to correct the original decree nunc pro tunc is affirmed.

We next take up the question of the action of the trial court in sustaining the motion of the respondent husband to modify the decree to the extent of relieving him from the payment of any further alimony whatsoever to the wife.

Our supreme court en banc, in the course of its opinion in Nelson v. Nelson, 282 Mo. 412, 221 S.W. 1066, 1069, as to permanent alimony, said it "is not a continuing of the support of the wife by the husband, but it is the allowance of such a sum of money in gross or in installments as will fairly and reasonably compensate her for the loss of her support by the annulment of the marriage contract. In this limited sense at least it may be deemed an assessment of damages in her favor for breach of the contract by the husband. Following the rule of statutory interpretation heretofore premised, the elements that enter into and make up the measure of such damages are for all practical purposes, and on principle should be, determined by the same considerations that determined the amount of alimony under the unwritten law, the prior treatment of the spouses respectively of each other, the needs of the wife, the `faculties' of the husband, etc. But the essential nature of statutory alimony is not support furnished by an unwilling husband to his wife on the compulsion of a court of chancery, but compensation for the loss thereof adjudged her in an action at law. Chapman v. Chapman, 269 Mo. 663, 668, 192 S.W. 448, 449. The fact that alimony may be decreed from year to year, as well as in gross, does not militate against the idea that it is essentially compensation. If the husband has no property, his future earning capacity must be utilized to meet his obligation. In such case a judgment in gross might defeat the very purpose to be attained. Nor does the further fact that the court may make such alterations in the amount allowed, from time to time as may be proper, so militate. The provision merely affords the opportunity from time to time as new conditions arise to more exactly determine the extent of the loss suffered by the wife. * * *"

Section 1355, Rev.St.Mo.1929, Mo. St.Ann. § 1355, p. 1564, which provides that the court which adjudges a decree of divorce shall make orders adjudging alimony and maintenance of the wife as, from the circumstances of the parties and the nature of the case, shall be reasonable, provides further that the court on application of either party may make such modification from time to time as to the allowance of alimony and maintenance as may be proper, any modification of the judgment for alimony being dependent upon a change in the circumstances of the parties between the time the judgment was entered and the time of filing the motion for modification. Luplau v. Luplau, Mo.App., 117 S.W.2d 366; Hayes v. Hayes, Mo. App., 75 S.W.2d 614; Landau v. Landau, Mo.App., 71 S.W.2d 49.

While in this state an action for divorce is a statutory suit at law and not a suit in equity, it does, nevertheless, partake of the nature of a suit in...