Smith v. Smith

• Decision Date: 14 June 1915
• Docket Number: No. 11670.,11670.
• Citation: 180 S.W. 568,192 Mo. App. 99
• Parties: SMITH v. SMITH.
• Court: Missouri Court of Appeals

180 S.W. 568

192 Mo. App. 99

SMITH v. SMITH.

No. 11670.

Kansas City Court of Appeals. Missouri.

June 14, 1915.

Appeal from Circuit Court, Jackson County; T. J. Seehorn, Judge.

Action by Josephine I. Smith against Lawrence E. Smith. Plaintiff was granted a divorce and awarded alimony, and from the award of alimony, she appeals, as does defendant. Affirmed, except as concerning the allowance of alimony, and as to that reversed and remanded, with directions.

A. N. Gossett, of Kansas City, for appellant. Haft, Meservey, German & Michaels, of Kansas City, for respondent.

ELLISON, P. J.

Plaintiff's action is for a divorce from her husband. She obtained a decree in the trial court, including alimony. No complaint is made of the decree for divorce, but each party was dissatisfied with the alimony, and the appeal of each is based on that ground.

It appeared at the trial that plaintiff owns the house in which the parties resided on which there was a mortgage of $2,500, and that there were three children. That part of the judgment relating to alimony included an allowance to plaintiff to cover her expense in prosecuting the action, including this appeal and attorney's fees, amounting to $512.50. The household effects were given to her. It appeared that there was a check payable to both parties for $1,550, the proceeds of a policy of insurance on his life in her favor, and this was ordered to be paid on the mortgage on the house, and, though the order was that the check was to be paid to her, and she make the payment on the mortgage, he had her indorse the check, and he paid it. Then, coming to the alimony proper, the judgment was that she should receive $1,800 a year, payable in monthly installments of $150, which was to include her care and support of the three children, except medical attention and education. The defendant was to have the right to select the clothing, and, if he did, he paid for it, but, if she selected it, the price came out of her allowance.

Defendant insists that plaintiff has estopped herself from prosecuting the appeal on her part for the reason, as he claims, that she consented to the judgment and accepted its provisions. A great many authorities are cited by him supporting the proposition that one cannot accept the proceeds of a judgment and at the same time refuse to abide by it. Among those collected by counsel is Waddingham v. Waddingham, 27 Mo. App. 596, which may be accepted as a type of the others. But we do not think the record discloses any facts sustaltung defendant's claim. Much of the claim is based on the fact that plaintiff's attorney wrote down with pencil, in formal shape, the decree made by the court. If he had done that without change or suggestion, it would not have constituted an acceptance of the decree and have barred plaintiff's right to prosecute an appeal. Plaintiff, while this was being done, may consistently have intended to appeal. She had a vital interest in the decree, contingent on its being affirmed. Although intending to appeal, it was prudent and right that her counsel should see that it was in legal form and contained all in her favor which the court directed; for, if affirmed, it would be perhaps her sole dependence in life. But the record shows that the form drawn was not the sole production of plaintiff's counsel. The affidavit of defendant's counsel shows that he and the court took active part in its preparation. "The court," affiant says, "himself made several changes in the draft, especially with respect to the provision that the alimony should be for the life of plaintiff"—thus striking out this vital matter which plaintiff was and is constantly insisting upon.

As another evidence that plaintiff accepted the decree, it is said that it read that the sum of $1,550 insurance money on a policy on defendant's life, payable to her, should be paid "forthwith" on the mortgage against the home, securing a note signed by defendant as well as plaintiff, and that it was so paid. But, as we have stated, it was paid by defendant himself, without plaintiff's presence, when the decree directed that she should receive the money and make the payment. Again, it is claimed that defendant promptly sent by mail a check to plaintiff for $150 as first installment of alimony. This was done after plaintiff's motion for new trial was filed, and it was not used by plaintiff, but tendered back to the defendant and accepted by him.

It appears that plaintiff owned a share of stock in one of the business corporations in which defendant was interested. It came up in course of the trial, and by agreement between them she sold it to defendant for $500. We think this incident has no weight on the question whether she accepted the decree.

There is no necessity to treat further of defendant's point that plaintiff's appeal should be dismissed, for, as we have already stated, there is no sufficient basis of fact to support it; and, besides, the affidavit embodying the different suggestions in support of the point itself discloses that plaintiff's action did not cut her off from a right of appeal. It is there stated by the affiant that neither of plaintiff's counsel said "in so many words that no appeal would be taken," yet he got "an indelible impression" that none would be, and that he told defendant that "he felt confident * * * no appeal would be taken." Praiseworthy zeal on the part of faithful counsel in behalf of his client may easily cause impressions and confidence as to the intentions of the opposing party; but they should not be allowed such effect as to cake from such party an important privilege upon which depends the right to remain in court. Plaintiff filed her motion for new trial next day after the judgment was entered, and nothing shown in the record has impressed us that she ever abandoned or intended to forego her right to appeal.

The merits of the controversy so far as concerns plaintiff's right to a divorce are not debatable. His adulterous conduct was shameless, gross, and coarse. Among other things, he registered a woman at a hotel in his wife's name. But it is difficult, as it nearly always is, to fix upon a proper sum for alimony and to determine its mode of payment. At the time of the trial she was 42 and he 45 years old. They had been married 18 years, and eight children were born, but five of these died in infancy. The three now alive are boys, aged 3, 12, and 17 years. Defendant is doing a prospering business. The total value of his property, from plaintiff's...