Sisco v. Sisco, 30486

• Decision Date: 20 September 1960
• Docket Number: No. 30486,30486
• Citation: 339 S.W.2d 283
• Parties: Edith SISCO, Plaintiff-Respondent, v. Albert SISCO, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 283

339 S.W.2d 283

Edith SISCO, Plaintiff-Respondent, v. Albert SISCO, Defendant-Appellant.

No. 30486.

St. Louis Court of Appeals, Missouri.

Sept. 20, 1960.

Frank E. Doyle, St. Louis, Fletcher P. Gotter, Overland, for appellant.

Fred A. Gossom, St. Louis Ben J. Weinberger, St. Louis, for respondent.

BRADY, Commissioner.

The respondent was granted a divorce from appellant on July 16, 1948, in the Circuit Court of St. Louis County. Under the provisions of the decree thereof, respondent received custody of the three minor children born of the marriage and was awarded $7 per week per child for their support, $1 per month as alimony, and an allowance for her attorney's fees and costs. Reasonable visitation privileges were granted to the appellant. The record discloses the next happening to have occurred on April 6, 1959, when respondent filed a verified motion for execution and therein stated that no part of the judgment had ever been paid. One month later, the appellant filed his motion to quash execution, based on the grounds that nothing having been paid on the judgment and no revival having been accomplished the judgment was dead. Respondent then filed a motion to strike the motion to quash and also a motion to modify. In this latter motion it was alleged that it was now impossible to provide support and maintenance for the children on the amount awarded because of (1) increased costs of living and (2) the present ages and requirements of the children. It was also alleged that the appellant's circumstances had now changed for the better and the support and maintenance for the children should be increased to $16.66 per child per week, and alimony should now be $5 per week. Hearing was then held on the respondent's motion to quash execution. This hearing consisted entirely of argument by counsel and questions of counsel by the court. It appearing that the court was going to grant time for briefs on the question of the motion to quash, respondent's counsel conceded the motion to quash properly lay, and the trial court then overruled the motion to strike and sustained the motion to quash. Whereupon trial proceeded upon the respondent's motion to modify. The record does not disclose any objection to this procedure on the part of the appellant. Counsel did state,

'May I make this suggestion? It seems to me that before hearing any testimony with reference to the motion to modify that it ought to be cleared up whether or not the Court has jurisdiction to modify a defunct judgment.'

The court indicated that in its opinion it had such jurisdiction, having continuing jurisdiction over the children until they were 21 years of age or emancipated. No further objection was made and respondent offered testimony. The record discloses no testimony on the part of appellant, but neither was any other objection made nor was any motion offered by appellant at the close of respondent's case.

The trial court took the matter under advisement and later entered its decree modifying the original decree by taking one of the three children out from under the provisions for support and maintenance because of emancipation, increasing the support and maintenance for the other two children to $10 a week each, and awarded $100 as attorney's fee. The court refused to modify the original decree as to the alimony allowance '* * * for the reason that the judgment heretofore entered herein in that respect became dormant for failure of revival as by the statutes provided; * * *' appellant's timely motion for new trial or rehearing was overruled, and he has perfected this appeal.

There is only one point for our consideration raised by appellant's brief. That is, did the trial court commit prejudicial error in modifying the decree because the judgment thus modified had become dormant and satisfied under the statutes and no longer existed? We have not been favored with a brief by the respondent.

Section 516.350 RSMo 1949, V.A.M.S., provides:

'Every judgment, order or decree of any court of record of the United States, or of this or any other state, territory or country, shall be presumed to be paid and satisfied after the expiration of ten years from the date of the original rendition thereof, or if the same has been revived upon personal service duly had upon the defendant or defendants therein, then after ten years from and after such revival, or in case a payment has been made on such judgment, order or decree, and duly entered upon the record thereof, after the expiration of ten years from the last payment so made, and after the expiration of ten years from the date of the original rendition or revival upon personal service, or from the date of the last payment, such judgment shall be conclusively presumed to be paid, and no execution, order or process shall issue thereon, nor shall any suit be brought, had or maintained thereon for any purpose whatever. (R.S.1939, Sec. 1038)'

The term 'alimony', as used in a divorce decree containing no other explanation of the term, means an allowance for support of the wife alone, and 'maintenance' means support for the minor children. Marley v. Marley, 356 Mo. 870, 204 S.W.2d 261; Goodwin v. Goodwin, Mo.App., 277 S.W.2d 850. What the trial court did in this case was to agree with appellant that the judgment as to 'alimony' could not be modified because ten years had expired without payment or revival, and at the same time agree with respondent that the judgment could be modified as to support and maintenance.

In the case of Mayes v. Mayes, 342 Mo. 401, 116 S.W.2d 1, an appeal was taken from a judgment quashing an execution obtained by the wife. The appeal was to the Kansas City Court of Appeals (Mo.App., 104 S.W.2d 1019) and that court reversed the judgment in the trial court, but because of conflict between that decision and earlier cases decided by this court, notably Hauck v. Hauck, 198 Mo.App. 381, 200 S.W. 679, the decision was certified to the Supreme Court. The same arguments were made before the Supreme Court that are inherent in the position of the respondent in this case, and in the statement by the trial court that it had continuing jurisdiction over the minor children until their emancipation or they reached their majority. That argument finds its basis in Sec. 452.070 RSMo 1949, V.A.M.S. (Sec. 1355, R.S.Mo.1929 at the time of the Mayes decision) which provides:

'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. (R.S.1939, Sec. 1519)'

Section 452.110 RSMo 1949, V.A.M.S. Sec. 1361, R.S.Mo.1929, at the time of the Mayes decision), provides:

'No petition for review of any judgment for divorce, rendered in any case arising under this chapter, 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. (R.S.1939, Sec. 1525.)'

Based on that section, the argument proceeds as follows: that the duty of supporting the minor children primarily rests upon their father; that the divorce court retains jurisdiction during the children's minority to modify or alter the original decree as to custody and maintenance; and that therefore a judgment rendered in favor of a wife for support of a minor child can never become dormant during the minority of the child regardless of the passage of more than ten years without payment or statutory revival. This same argument is found stated in Mayes v. Mayes, supra, 116 S.W.2d 1, at loc. cit. page 4.

In the Hauck case, 198 Mo.App. 381, 200 S.W. 679, supra, a decree of divorce was entered in 1903 awarding the wife a divorce, custody of the minor son of the marriage and $15 a month for the boy's maintenance. An execution and also a garnishment was taken out in that same year, and the wife, availing nothing by either...