Smith v. Smith

• Decision Date: 08 September 1942
• Docket Number: 37958
• Citation: 164 S.W.2d 921,350 Mo. 104
• Parties: Mabel G. Smith, Appellant, v. Laurence A. Smith
• Court: Missouri Supreme Court

164 S.W.2d 921

350 Mo. 104

Mabel G. Smith, Appellant, v. Laurence A. Smith

No. 37958

Supreme Court of Missouri

September 8, 1942

Rehearing Denied October 6, 1942.

Appeal from Jackson Circuit Court; Hon. Ben Terte, Judge.

Affirmed.

Isaac C. Orr and Joseph J. Howard for appellant.

(1) Where alimony is made an issue in a divorce action by proper application therefor, "the judgment on the question of alimony is never final in the sense that it cannot be changed, but may be changed on proper application at any time in the future." Laweing v. Laweing, 21 S.W.2d 2; Herbert v. Herbert, 229 S.W. 805, 221 Mo.App 201. (2) Sec. 1519 and Sec. 1525, R. S. 1939, must be construed together and will not be strictly construed. Robinson v. Robinson, 268 Mo. 703. (3) The statutes of other jurisdictions with reference to modifying or changing a decree as to alimony have in a majority of instances been construed as not permitting modification after the end of the term where no alimony was awarded at the time of the entry of the decree, but the statutes of New Hampshire and New Jersey, as well as an English and Missouri statutes upon this subject matter, have been construed as permitting modification thereafter even though no alimony was awarded in the first instance. Laweing v. Laweing, 21 S.W.2d 2; Cross v. Cross, 63 N.H. 444; Sheafe v Laighton, 36 N.H. 240; Lynde v. Lynde, 54 N.J.Eq. 73, 35 A. 641; Sidney v. Sidney, 36 L. J Prob. N. S. (Eng.) 73; Note 83 A. L. R. 1248.

Carl Borello, Taylor Smith, Harry O. Smith and Walter A. Raymond for respondent.

(1) Jurisdiction of the circuit court to adjudge alimony depends upon and is limited by the statutes. Chapman v. Chapman, 269 Mo. 663, 192 S.W. 448; Watts v. Watts, 304 Mo. 361, 263 S.W. 421; Secs. 1519, 1520, R. S. 1939; Van Deusen v. Ruth, 343 Mo. 1096, 125 S.W.2d 1; 17 Am. Jur., sec. 588; Doyle v. Doyle, 268 Ill. 96; Haven v. Trammel, 79 Okla. 155, 179 P. 595; Kinney v. Kinney, 231 S.W. 267; Herbert v. Herbert, 221 Mo.App. 201, 299 S.W. 840. (2) As the decree which subsequently became final did not award alimony the court lost jurisdiction to thereafter award alimony. Dickey v. Dickey, 132 S.W.2d 1026; Hagemann v. Pinska, 225 Mo.App. 521, 37 S.W.2d 463; Kinsella v. Kinsella, 60 S.W.2d 747; Stanley v. McKenzie, 29 Ariz. 288; Long v. Long, 5 P.2d l. c. 1048; Spain v. Spain, 177 Iowa 249, 158 N.W. 529; Howell v. Howell, 104 Cal. 45, 37 P. 770; Bassett v. Bassett, 74 N.W. 780, 99 Wis. 344; Kelley v. Kelley, 317 Ill. 107, 147 N.E. 659; Moross v. Moross, 129 Mich. 27, 87 N.W. 193; Plummer v. Plummer, 14 A.2d 705; Jones v. Jones, 284 Ky. 511, 145 S.W.2d 90; Cameron v. Cameron, 31 S.D. 335, 140 N.W. 700; McClure v. McClure, 4 Cal. (2d) 356, 49 P.2d 584; 19 C. J., p. 248, sec. 576; 17 Am. Jur., sec. 631; Mefford v. Mefford, 26 S.W.2d 804; State ex rel. Maple v. Mulloy, 322 Mo. 281, 15 S.W.2d 809; Edwards v. Edwards, 228 Mo.App. 449, 66 S.W.2d 969. (3) The trial court was without jurisdiction to award alimony after the decree, silent on that subject, had become final. Aetna Ins. Co. v. Hyde, 327 Mo. 115, 34 S.W.2d 85; Robinson v. Robinson, 268 Mo. 703, 186 S.W. 1032; 17 Am. Jur., p. 494; 19 C. J., pp. 247, 248, 249; L. R. A. 1917D, pp. 319-333. (4) The final decree of June 19, 1924, is res adjudicata of the issue of alimony. Lemon v. Garden of Eden Drain. Dist., 310 Mo. 171, 275 S.W. 44; Cantwell v. Johnson, 236 Mo. 575, 139 S.W. 365; Herbert v. Herbert, 221 Mo.App. 201, 299 S.W. 840. (5) The circuit court had no jurisdiction over the subject matter of the motion to modify and the parties could not confer jurisdiction even by consent. In re Buckles, 331 Mo. 405, 53 S.W.2d 1055; Hill v. Barton, 194 Mo.App. 325, 188 S.W. 1105; State ex rel. Utilities P. & L. Corp., 88 S.W.2d 157; McClain v. Kansas City Bridge Co., 88 S.W.2d 1019; State ex rel. Furstenfeld v. Nixon, 133 S.W. 340; Hope v. Blair, 105 Mo. 85, 16 S.W. 595; State ex rel. Davis v. Ellison, 208 S.W. 439; United Cemeteries Co. v. Strother, 119 S.W.2d 764; Bacigalupi v. Bacigalupi, 72 Cal.App. 654, 238 P. 93; Gillespie v. Andrews, 78 Cal.App. 595, 248 P. 715; Golderos v. Golderos, 169 Va. 496.

OPINION

Douglas, P. J.

The question before us is whether a decree of divorce, silent as to alimony, may be modified at a subsequent term so as to allow alimony.

Appellant was plaintiff in a divorce action and obtained a decree in the Circuit Court of Jackson County in June, 1924. Although she prayed for alimony in her petition the decree made no mention of it. She was awarded the custody of the three minor children and allowed $ 125.00 per month for their support and maintenance.

In September, 1940, she filed a motion to modify the decree. She states in her motion that when the decree was granted in 1924 she was in excellent health and was taking a secretarial course. She "was led to believe, by reason of defendant's representations, that with what she could earn and with the $ 125.00 a month adjudged by the court for the maintenance of said children, she could properly maintain them and herself." For several years past her health has been impaired so that she has been unable to work regularly and earn any appreciable amount. She is now unable to work and has no funds with which to support herself. Two of the three children have attained their majority and the third will attain his majority within a year. Her former husband is employed at a salary of $ 11,000.00 a year. She asks the decree be modified by ordering respondent to pay her monthly alimony.

To this motion respondent filed a plea to the jurisdiction on the ground the court had no power to modify the decree by making an order now allowing alimony for the first time and after the expiration of the judgment term.

The matter was presented to the court below on an agreed statement of facts. It shows that appellant at the time of her divorce was 30 years of age and in good health. She subsequently took a secretarial course for which respondent paid. Her health became impaired in 1937 and since 1939 she has been unable to work regularly or to earn an appreciable amount. She is now unemployed and in bad health. There was also a stipulation that if the court should hold it had jurisdiction to modify the decree the parties agreed to an allowance of alimony in the sum of $ 125.00 per month and in addition a lump sum allowance for $ 2,500.00.

The circuit court overruled the motion and an appeal to the Kansas City Court of Appeals was taken. That court sustained the motion and allowed alimony but the judges were divided in opinion. 157 S.W.2d 571. The case was transferred here at the request of the dissenting judge because of conflict with the decision in Herbert v. Herbert, 221 Mo.App. 201, 299 S.W. 840. We consider the case as though it reached here by ordinary appellate process. Const. Amd. 1884, Sec. 6.

In reaching a decision it will be difficult to cast aside considerations arising from sentiment, and a natural sympathy for appellant. Moreover, this is a case of first impression in this court. The question is not a simple one and the cases from other jurisdictions are in conflict.

First let us dispose of any question of fraud or mistake. The parties raise no such question nor does the record show any. There was no showing of any misrepresentation affecting the decree. Absent fraud or mistake a court is ordinarily powerless to modify its decree at a subsequent term. However we find in some states an exception to this rule created by statute as to alimony.

The decree in this case contained no reservation for further consideration of alimony. Therefore it follows, and the parties agree, the determination of the question depends solely on our statutes. In the article on Divorce and Alimony, Section 1519, R. S. 1939, says: "When a divorce shall be adjudged, the court shall make such order touching the alimony and maintenance of the wife, . . . 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 . . ." Section 1525 says: "No petition for review of any judgment for divorce, rendered in any case arising under this article, 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."

These statutes contain no express provisions as, for instance, are found in the New Hampshire and New Jersey statutes permitting the court after a decree of divorce to make new orders as to alimony. Still appellant contends that we should permit under the liberal construction which we must give these statutes, what would amount to a new order for alimony rather than a modification of one already made, citing Robinson v. Robinson, 268 Mo. 703, 186 S.W. 1032. She argues that Section 1519, "When divorce shall be adjudged, the court shall make such order touching alimony and maintenance of the wife" imposes a mandatory duty upon the trial court to order alimony. This argument is based on the use of the word "shall" as mandatory instead of the word "may," indicating discretion. Therefore, she contends, since it is mandatory for the court to order alimony in the first instance, the statutes contemplate the future alteration of such order. And a party may not be deprived of her right to this by the failure of the court to observe its mandatory duty. Since the statute permits the "allowance" of alimony to be altered, she insists this word must have been used in its generic sense and contemplates alteration of a decree which...