Spivack v. Spivack

• Decision Date: 14 October 1955
• Docket Number: No. 7415,7415
• Parties: Morris J. SPIVACK, Plaintiff-Respondent, v. Tory D. SPIVACK, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 137

283 S.W.2d 137

Morris J. SPIVACK, Plaintiff-Respondent, v. Tory D. SPIVACK, Defendant-Appellant.

No. 7415.

Springfield Court of Appeals, Missouri.

Oct. 14, 1955.

Harold S. Hutchison, Vienna, Claude T. Wood, Richland, for defendant-appellant.

RUARK, Judge.

On trial of a divorce case defendant was awarded decree of divorce and alimony in gross. She filed her motion to amend judgment or in alternative for new trial. The judgment was amended so as to remove the alimony in gross and allow defendant alimony in the sum of $60 a month and attorneys' fees in amount of $150. The original and the amended judgment concluded with the following words:

'It is further ordered, adjudged and decreed by the court that upon satisfaction of this judgment, defendant shall be thereby divested of all right, title and interest in and to plaintiff's property, including dower in any real estate which the plaintiff now owns or which the plaintiff may have owned during his marriage to defendant.'

Defendant has appealed.

At argument defendant's counsel tossed a mouse in the meal barrel by suggesting they now believe they have appealed to the wrong court and suggest transfer to the Supreme Court because title to real estate is involved. They cite Johnston v. Johnston, Mo.App., St.L.C.A.1926, 280 S.W. 76. In that case the applicable portion of the decree was:

"Upon the payment of said alimony the defendant is to execute and deliver to the plaintiff a quitclaim deed to the lands of plaintiff, and deposit the same with the clerk of the circuit court for the plaintiff."

Jurisdiction was accepted by the Supreme Court, Johnston v. Johnston, 16 S.W.2d 91 and disposed of by that court upon inadequacy of briefs, without considering the appellate jurisdiction.

The record in this case shows plaintiff had no property except real estate and defendant had no claim or interest therein except that of inchoate dower. The sole question is whether the right of inchoate dower is such an interest in the title to real estate as to vest jurisdiction in the Supreme Court under art. 5, sec. 3, Constitution of 1945, V.A.M.S. We are of the opinion that it is not. In Murawski v. Murawski, Mo.Sup., 203 S.W.2d 714, loc. cit. 715, decided by the Supreme Court in 1948, it was said:

'Assuming, but not deciding, that plaintiff has inchoate right of dower in defendant's undivided one half interest in the lot, is such interest 'real estate' within the meaning of the term 'real estate' in the Constitution? The question seems to be definitely answered in Brannock v. Magoon, 216 Mo. 722, 116 S.W. 500, where it is ruled that inchoate right of dower in real estate is not 'real estate' within the meaning of that term as used in the Constitution. [Citing cases.]'

The case was transferred to the Court of Appeals. Brannock v. Magoon so cited in the Murawski case contains considerable text and case authority, all of which, while recognizing that inchoate dower is a substantial right possessing many of the incidents of property, hold it is not an estate nor an interest in real estate. We are of the opinion that the Murawski case is controlling and therefore retain jurisdiction.

Appellant's first assignment is that the court was without jurisdiction to adjudge that upon satisfaction of judgment defendant should be divested of all her right, title and interest in the plaintiff's property, including dower in real estate. A wife who obtains a divorce for fault or misconduct of her husband does not thereby lose her dower. Section 469.200, RSMo 1949, V.A.M.S.; Borders v. Niemoeller, Mo.App., 239 S.W.2d 555; North v. North, 339 Mo. 1226, 100 S.W.2d 582, 584, 109 A.L.R. 1061. And it has been repeatedly held that a decree in a divorce case which attempts to divest or to compel relinquishment of title or dower in the husband's land is void. Ecton v. Tomlinson, 278 Mo. 282, 212 S.W. 865; Johnston v. Johnston, Mo.App., 280 S.W. 86; Scales v. Scales, 65 Mo.App. 292; Bishop v. Bishop, Mo.App., 151 S.W.2d 553. In Ecton v. Tomlinson above cited, at 212 S.W. loc. cit. 866, it is said:

'For the same reason it cannot in such an action by its decree compel the relinquishment by the wife of her dower in her husband's lands. Davison v. Davison, 207 Mo. 702, 106 S.W. 1; Scales v. Scales, 65 Mo.App. 292. In an action for divorce where the court attempts to take into account, adjudicate and settle all questions of property rights, both present and inchoate, between the parties, it is not in so doing merely erroneously exercising jurisdiction; it is proceeding wholly without jurisdiction. It follows, therefore, that its judgment in such respect is void.'

It is noted in Arnold v. Arnold, Mo.Sup., 222 S.W. 996, 1000, in an opinion in banc rendered in 1920, the decree complained of was:

"The award of alimony herein made shall be in lieu of all dower and property and marital rights of the plaintiff in or against the estate of defendant."

At 222 S.W. loc. cit. 1001 the court, after referring to the statute (now 469.200), stated:

'That does not mean that the court in adjusting the matter of alimony and property between parties could not make any order affecting the wife's dower interest; on the contrary, it has been held by this court that a trial court might award alimony on condition that the wife release her dower. Aylor v. Aylor [Mo.] 186 S.W. 1068, loc. cit. 1071, 1072. The paragraph in modification of the decree in this case, quoted above, is sufficiently explicit to show it was the intention of the court that the award should be on that condition. If it is not sufficiently explicit to express that condition, then a nunc pro tunc entry would make it so.'

The Aylor case so cited did not, we think, make such holding. Nevertheless, the Arnold case appears to be the last and therefore controlling decision of the Supreme Court on the subject. It has been cited many times and certain portions of it have been criticized and distinguished, but not that portion of the opinion above quoted. State ex rel. Couplin v. Hostetter, 344 Mo. 770, 129 S.W.2d 1, loc. cit. 4, while criticizing some language of the Arnold case, impliedly approves the holding by stating:

'Moreover, in this very case a conditional award was upheld, that is, an award of alimony in gross on condition that the plaintiff waive her dower and marital rights.'

Distilling the essence of the holdings in the shadow of the Arnold case, it is our conclusion that the trial court in a divorce case is wholly without jurisdiction to divest title or dower or to compel relinquishment of the same, but that such court may require the relinquishment as a condition to the award and receipt of alimony. There remains only the question whether the decree in this case can be interpreted as a condition so as to make it subject to correction by nunc pro tunc entry. In the Arnold case the court considered the language of the decree, that the award of alimony was 'in lieu,' sufficient to show it was the intention of the court that the award should be on condition. The language of the judgment in the present case is that 'the defendant shall be thereby divested,' et cetera, indicating, we think, a purpose of the court to divest dower by its own judgment rather than to impose its relinquishment upon the defendant as a condition. In fact, the language of the court in the colloquy at the time indicates that such was the intention. This was beyond the jurisdiction of the court and is not susceptible of amendment nunc pro tunc, for such an amendment may not be made to correct a mistake or oversight of the judge nor to correct judicial errors, Ackley v. Ackley, Mo.App., 257 S.W.2d 401, 403, and cases cited; Haycraft v. Haycraft, Mo.App., 141 S.W.2d 170, 171, and cases cited, nor to breathe life into a void judgment. State ex rel. Arthur v. Hammett, 235 Mo.App. 927, 151 S.W.2d 695, 701; State v. Pemberton, 235 Mo.App. 1128, 151 S.W.2d 111, 118.

Irrespective of the foregoing, this portion of the judgment should not have been entered as written, for it contained the provision that 'upon satisfaction of this judgment' defendant shall be thereby divested. Such a provision might be practical in respect to an allowance of alimony in gross as first made by the court, where payment of the whole amount might be made and satisfaction had. However, after the judgment was amended to provide for monthly alimony it is difficult to see how it could have been 'satisfied' except by death or by order after remarriage. If it was intended to leave the plaintiff free to convey his property during his lifetime without consent of the wife, it did not accomplish the purpose and the only practical effect would have been a benefit inuring to heirs of the plaintiff after his death, at which time defendant's alimony would have ceased and she would have been dependent solely upon her dower for support in the future. We hold for the appellant on this point.

Appellant's second assignment is that the alimony allowed ($60 per month) is grossly inadequate.

The respondent, while he had his petition for divorce prepared by an attorney, had no counsel representing him at the trial, has filed no brief and is not represented in this court. At time of trial he was 84 years of age, spoke with a heavy accent, and there is some indication in the record that age was commencing to slow his mental processes. The trial judge went as far as a court could go in according the respondent every opportunity to present his case and in protecting his interests in regard to admissibility of evidence. Likewise counsel for defendant were eminently fair and forbearing and they have been completely fair in their presentation of the questions in their brief here, even to the extent of calling attention to some authority which might be taken as against some of their contentions. It is not appellant's fault, and her case should not be permitted to suffer because respondent was without counsel. Nevertheless, responden...