Shilkett v. Shilkett, 7425

CourtCourt of Appeal of Missouri (US)
Citation285 S.W.2d 67
Docket NumberNo. 7425,7425
PartiesLouise SHILKETT, Plaintiff-Appellant, v. Charles W. SHILKETT, Defendant-Respondent.
Decision Date16 December 1955

Roy Coyne, Joplin, Gerald Cohen, St. Louis, for plaintiff-appellant.

Emerson Foulke, Joplin, for defendant-respondent.

STONE, Judge.

During January, 1953, a decree was entered in the Circuit Court of Jasper County, Missouri, granting a divorce to plaintiff and directing defendant to pay $200 per month as alimony and $100 per month for support of a daughter, Carol, then sixteen years of age. On defendant's motion filed on June 19 and heard on September 28, 1954, the court modified the original decree by eliminating entirely as of October 1, 1954, the alimony of $200 per month. Plaintiff appeals.

At the outset, we emphasize the firmly-entrenched principles that a judgment for alimony, like any other judgment in an action at law, is res judicata as to all facts and conditions bearing upon the award and existing at the date of its rendition [Jourdan v. Jourdan, Mo.App., 251 S.W.2d 380, 382(3); Goldstein v. Goldstein, 237 Mo.App. 274, 165 S.W.2d 876, 879(4)--consult also Hurley v. Hurley, Mo.App., 284 S.W.2d 72; Lehr v. Lehr, Mo.App., 264 S.W.2d 35, 36(1); Shepard v. Shepard, Mo.App., 194 S.W.2d 319, 323(3); Foster v. Foster, Mo.App., 146 S.W.2d 849], and that authority for modification of a judgment for alimony is dependent upon proof of a subsequent change in conditions. Schulte v. Schulte, Mo., 140 S.W.2d 51, 54(5); Shapiro v. Shapiro, Mo.App., 238 S.W.2d 886, 889(1); State ex rel. Scott v. Harris, Mo.App., 136 S.W.2d 78, 80(1); Couplin v. Couplin, Mo.App., 121 S.W.2d 186, 187(2). Of course, the burden of showing such change rests upon the movant. Samland v. Samland, Mo.App., 277 S.W.2d 880, 881(4); Seigfreid v. Seigfreid, Mo.App., 187 S.W.2d 768, 769(1).

The only change of condition alleged in the motion to modify or found by the trial court was a decrease in the net earnings derived from operation of the Rex Theatre in Joplin, Missouri, which was owned and operated by defendant as sole proprietor and, at all times herein material, has been his sole source of income. Defendant averred in his motion to modify that his 'earning power' was $300 to $400 per month 'at the time of the trial (in January, 1953) and for some time thereafter'; that, since June 1, 1953, his 'earning power has decreased continuously' that 'during the latter part of 1953 his earnings were $100 per month or less'; and that, after January 1, 1954, 'the operation of * defendant's place of business has been carried on at a loss' and defendant has had 'no earning power.' However, defendant's evidence was that, during 1952, the gross receipts of the Rex Theatre were $64,009.20 and the net income (after deduction of expenses, including depreciation of $1,991.02 which, although a proper accounting deduction, was not a cash expenditure) was $14,369.28, an average of $1,197.44 per month; that, during 1953, the gross receipts were $58,049.33 and the net income (after deduction of expenses, including depreciation of $1,502.81) was $13,273.68, an average of $1,106.14 per month; and that, from January 1 to July 31, 1954, the gross receipts were $25,982.16 and the net income (after deduction of expenses, including depreciation of $937.73) was $5,554.86, an average of $793.55 per month. In 1953, August, October and November were 'the three best' months.

Defendant had no personal bank account but made withdrawals from the bank account of the Rex Theatre (hereinafter referred to as the Rex account) for 'whatever I (defendant) need to pay my expenses.' Defendant's personal withdrawals from the Rex account during 1952 aggregated $19,798.35, his personal withdrawals during 1953 (including $2,200 paid on his judgment liability of $3,300 for alimony and child support) aggregated $14,214.07, and his personal withdrawals for the first seven months of 1954 (including $650 paid on his judgment liability of $2,100 for alimony and child support) aggregated $4,706.13. Payments in the aggregate sum of $224.67 per month on notes for 'capital expenditures' at the theatre before entry of the original decree in January, 1953, were included in defendant's personal withdrawals as shown above. In September, 1953, defendant executed another note, payable $50 per month, for an 'ice cream machine' for the concession stand; but, as defendant agreed, this machine was 'really paying for itself' by increasing business so there was, after January, 1953, no material change of condition by reason of the monthly payments for 'capital expenditures.' The record before us is wholly silent as to the unpaid principal balance of, and as to the number of monthly installments remaining unpaid upon, any of the notes given for 'capital expenditures.'

The foregoing reflects the substance of the evidence pertaining to 'decrease in the income from the Rex Theatre'; but, since other testimony was offered and received without objection, we shall discuss it briefly. At all times herein material, monthly payments of $50 each were being made from the Rex account on a note executed by defendant when he purchased a new Cadillac automobile in October, 1952, prior to entry of the original decree. Defendant's modest estimate of the cost of a two-weeks trip to Canada in his Cadillac during 1953 was $150 and his equally conservative estimate of the cost of 'several' trips to Bull Shoals Lake in Arkansas was $20 each. During 1953, his rented home on a 60-acre tract seven miles south of Joplin was destroyed by fire and the lost all of his personal effects other than 'the suit of clothes on my back.' After receiving insurance of '$7,000 for about a $30,000 loss,' he bought 'a wardrobe,' purchased the 60 acres for $3,000, and constructed a new home on it. The remainder of the construction cost of the new home was financed by a loan, apparently in the original principal sum of $9,000, on which monthly payments of $129 thereafter were made from the Rex account until August, 1954, when the principal of the loan was increased to $10,000 and defendant paid an 'old income tax item' and some delinquent admission taxes. At the time of hearing, defendant had contracted to sell his new home to one Lee Smith for $17,000; and, in the judgment of modification subsequently entered on October 12, 1954, the trial court recited that the sale had been consummated and that, from the net proceeds thereof, defendant had reduced the delinquent alimony and child support under the original decree to $200.

Plaintiff resides in Webster Groves, Missouri, with her daughter and her mother. Plaintiff's mother, 73 years of age, who had a cerebral hemorrhage several years ago and is in very poor health, 'has been living on a trust fund' which will be 'used up' about 2 1/2 years from the date of hearing, or in the early part of 1957. Plaintiff's daughter, enrolled as a freshman in Washington University at the time of hearing, will attain her majority in September, 1957, and the child support of $100 per month, which the trial court quite properly refused to modify, will (unless sooner terminated by the daughter's marriage) terminate then. Although not given the exact age of either party, we know, from the disclosure that the parties also have an adult son, that their marriage was one of many years' duration. Plaintiff, who (as defendant readily conceded) had been 'very seriously sick' with tuberculosis and had 'spent a great deal of her married life in institutions,' testified without contradiction that, although 'my health in the last two years has been fair,' she 'don't do too much,' takes 'the necessary rest,' and at the time of hearing was 'still under a doctor's care.' Having attempted to work as a saleslady for a realty firm in Webster Groves for three or four months early in 1954, plaintiff 'wasn't able to keep it up,' did not obtain a license [Chapter 339, RSMo 1949, V.A.M.S.], and earned only $200.

During the Fall of 1952 (and thus prior to entry of the original decree), plaintiff and her mother purchased a home in Webster Groves. Plaintiff was not asked, and the record does not show, the amount of the purchase price or the down payment; but, plaintiff stated (and again without contradiction) that her mother 'paid the down payment' and that title was taken in the joint names of herself and her mother 'in case anything happened to either one.' The home was subject to a loan of $14,500 payable $114.67 per month. It was developed that plaintiff had title to two automobiles, one of which was a 1952 Chevrolet said by plaintiff to have been 'my mother's' and to have been subject to a loan of about $350 at the time of hearing, and the other of which was a 1949 Ford, 'a (high school) graduation gift to my daughter from my mother,' used by the daughter in ' a driving pool' for transportation to school, and registered in plaintiff's name because the daughter was a minor. The only income which plaintiff was shown to have, other than payments by defendant under the original decree, was [as 'I (plaintiff) testified * when we got the divorce'] $1,000 per year from dividends on unidentified stock, the reasonable market value of which was not suggested.

We recognize that, as defendant urges, allowance of alimony to a wife, to whom a divorce is granted, is not mandatory [Smith v. Smith, 350 Mo. 104, 164 S.W.2d 921, 923(3); Simmons v. Simmons, Mo.App., 280 S.W.2d 877, 881(4); Baker v. Baker, Mo.App., 274 S.W.2d 322, 324(1)], and that, under our present concept of alimony, a divorced wife, who is capable of assisting herself, has no right to insist that her husband maintain her in idleness and luxury, simply because he has been adjudged the guilty party. Stokes v. Stokes, Mo.App., 222 S.W.2d 108, 113; Schwent v. Schwent, Mo.App., 209 S.W.2d 546, 547(1); Knebel v. Knebel, Mo.App., 189 S.W.2d 464, 468. Nevertheless, it has been said...

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