State ex rel. Couplin v. Hostetter

• Decision Date: 06 June 1939
• Docket Number: 36440
• Citation: 129 S.W.2d 1,344 Mo. 770
• Parties: State of Missouri at the relation of Leroy E. Couplin, Petitioner, v. Jefferson Davis Hostetter, William Dee Becker and Edward J. McCullen, Judges of the St. Louis Court of Appeals
• Court: Missouri Supreme Court

129 S.W.2d 1

344 Mo. 770

State of Missouri at the relation of Leroy E. Couplin, Petitioner, v. Jefferson Davis Hostetter, William Dee Becker and Edward J. McCullen, Judges of the St. Louis Court of Appeals

No. 36440

Supreme Court of Missouri

June 6, 1939

Writ quashed.

Feigenbaum & Nations and Gus O. Nations for relator.

(1) A judgment for alimony is a judgment for the payment of money and can be enforced only as other such judgments are enforced, by execution. This court has repeatedly held and it is well established that divorce is purely a proceeding at law and has no incidents or characteristics other than those prescribed by statute. Chapman v. Chapman, 269 Mo 663, 192 S.W. 448; Nelson v. Nelson, 282 Mo. 412 221 S.W. 1066; Arnold v. Arnold, 222 S.W. 996; Watts v. Watts, 304 Mo. 361. This court has also repeatedly held and it is equally well established that a judgment for alimony is a money judgment which can be enforced only by the means available for enforcing other money judgments. R. S. 1929, sec. 1355; Coughlin v Ehlert, 39 Mo. 285; Chapman v. Chapman, 269 Mo 663, 192 S.W. 448; Nelson v. Nelson, 282 Mo. 412, 221 S.W. 1066; Miller v. Miller, 14 Mo.App. 418; McMakin v. McMakin, 68 Mo.App. 57; In re Kingsolving, 135 Mo.App. 631; Hillenkoetter v. Hillenkoetter, 249 S.W. 428; Bowers v. Bowers, 35 S.W.2d 41. This has been the law of Missouri since the early case of Coughlin v. Ehlert, 39 Mo. 285, in which it was sought to punish as for a contempt the failure of a husband to satisfy a judgment for alimony. The Supreme Court in a habeas corpus proceeding ordered the petitioner discharged, holding a decree for alimony is a money judgment and enforceable only in the manner provided by the statute, now Section 1355, Revised Statutes 1929, which provides the court may "award an execution for the collection thereof, or enforce the performance of the judgment by sequestration of property, or by such other lawful ways and means as is according to the practice of the court." And the courts have uniformly held, since that time, that the only method for enforcing such payment is by execution as in other cases of money judgments. The statutory provision for collection by sequestration of property is held to be unconstitutional and void as applicable only to equitable proceedings. Coughlin v. Ehlert, 39 Mo. 285; Chapman v. Chapman, 269 Mo. 663, 192 S.W. 448. (2) The holding of the St. Louis Court of Appeals that it may enforce collection of a prior judgment by the coercive method of denying justice in an independent proceeding is an assertion of power the statute does not give and is in conflict with the rulings of this court. The action for divorce is created, governed and limited by the statute, Chapter 7, Article 3, Revised Statutes 1929. The proceeding "is not a common law or chancery proceeding, but is a proceeding sui generis, founded on the statute." Stokes v. Stokes, 1 Mo. 320; Chapman v. Chapman, 269 Mo. 663, 192 S.W. 448.

William J. Blesse, Rozier Meigs and William Kohn for appellant in Court of Appeals.

(1) Controlling decisions of this court touching upon the question at issue are: State ex rel. Dawson v. St. Louis Court of Appeals, 99 Mo. 216, 12 S.W. 661; Waters v. Waters, 49 Mo. 388; Gercke v. Gercke, 100 Mo. 242. These cases hold that in a divorce case the court has the power to withhold or deny judgment in favor of the husband as long as he is in default on payments of alimony previously allowed. The cases relied on by relator do not deny the existence of this power. (2) The decisions of this court cited and relied on by relator hold that an alimony judgment is a judgment for the payment of money and may be enforced by execution. Nothing said in the opinion of respondents is in conflict with such holding. (3) While decisions of the Courts of Appeals cannot be considered in certiorari cases, State ex rel. v. Shain, 123 S.W.2d 6, the Courts of Appeals' cases cited and relied on by relator are not in conflict with the holding of respondents.

Douglas, J. All concur, except Hays, J., absent.

OPINION

DOUGLAS

This is an original proceeding in certiorari to review for conflict with our decisions the opinion of respondents in the case of Edna N. Couplin v. Leroy E. Couplin, 121 S.W.2d 186. In October, 1935, Edna N. Couplin was granted a divorce from her husband, the relator, with alimony of $ 40 per month. The relator has not paid any alimony to date. In May, 1937, on his motion, the trial court modified its judgment for alimony so as to terminate the order for monthly payments and adjudged alimony in gross in the amount of $ 200. On appeal the respondents found it was conceded an award of alimony in gross, in lieu of further monthly installments, was error. They then declared while an action for divorce is a statutory action in this State and not a suit in equity, nevertheless it does partake of the nature of a suit in equity. Under this theory they entered a new award as follows: "We are of the view that the judgment should be reversed and the cause remanded with directions to the trial court to sustain defendant's motion to modify the judgment respecting the monthly alimony payments to the extent of reducing the amount thereof from $ 40 to $ 20 per month beginning May 17, 1937, the date of the judgment herein appealed from, on condition that, since defendant has failed to comply with the order of the court as to the payment of the $ 40 per month alimony, and because of the further fact that defendant's salary of $ 150 per month which he receives as an Alderman of the City of St. Louis is not subject to the usual execution, said reduction of the decree of alimony shall become effective only upon the defendant, prior to February 1, 1939, paying plaintiff all unpaid alimony due her up to May 17, 1937, otherwise defendant's motion for modification to stand denied. It is so ordered."

By finding that a divorce action partakes of the nature of a suit in equity and by attaching a condition to its order of modification, it is claimed that the respondents' opinion is in conflict with our decisions in which it was said a divorce proceeding, and its incidents, is one at law and not in equity. There is some confusion in the expressions of this court on this subject which disappears upon an analysis of the opinions cited. It would be well first to relate briefly the history of the action. In England jurisdiction of divorce and alimony was included in the ecclesiastical law, a branch of the unwritten or common law, which was brought to this country with the other branches of the common law although we did not establish here the ecclesiastical courts which administered this law in England. In time, by statute, the administration of this law was assigned either to common law or equity courts, which courts carried on the old practices except where modified by the statutes of their creation. The various states generally extended the powers of the court to provide for absolute divorce with so-called permanent alimony. In England the only divorce was a mensa et thoro, or mere legal separation which did not disturb the obligation of the husband, although separated from his wife, to continue to support her. It becomes important to understand that the only means the ecclesiastical court had of enforcing its decree was by excommunication and when that punishment was forbidden for civil purposes then it became necessary to apply to a court of chancery for the purpose of carrying such decrees into effect. One who disobeyed a decree was certified to the court of chancery from which tribunal a writ of contempt was issued for his imprisonment. If imprisonment did not bring about obedience, then a writ of sequestration was issued against his property. If there was danger of flight, the writ of ne exeat was available. A dual jurisdiction over matters pertaining to divorce and alimony was thereby established. While divorce is statutory in this country, where not otherwise provided by statute our courts generally follow rules of equity and apply equitable principles. [See Schouler, Marriage, Divorce, Separation and Domestic Relations (6 Ed.), sec. 1466.]

In the Louisiana Territory, in 1807, it was ordained that the general court of the territory should have power to decree a divorce "not only from bed and board, but, also from the bond of matrimony itself." [1 Mo. Territorial Laws, 90.] Then in 1817 the Superior or Circuit Court of the Territory of Missouri was vested with such jurisdiction. [1 Mo. Territorial Laws, 517.] In 1823 in Stokes v. Stokes, 1 Mo. 320, this court held that the proceeding in a case for divorce was not a common law or chancery proceeding, but was a proceeding sui generis, founded on the statute and governed by the rules of the ecclesiastical court of England so far as they may be applicable. Then in 1825 (Laws 1829, p. 329) our State Assembly enacted a statute that "the Circuit Court, sitting as a court of chancery, shall have jurisdiction in all causes of divorce and alimony and maintenance; and the like process, practice, and proceedings shall be had in such cases as are usually had on the equity side of the court. . . ."

Our Code, which was adopted in 1849 (Laws of Mo. 1848-9, p. 73) abolished the distinction between actions at law and suits in equity and provided for but one form of action. In the first revision thereafter jurisdiction of divorce and alimony was continued in the circuit court but the provision "sitting as a court of chancery" was omitted. The process and proceedings were to be the same as "in other civil causes" instead of as "in other causes on the equity side of the court." [R. S. Mo. 1855, p. 663.]

On the other hand the statute (Sec. 1355, R. S. 1929, 2 Mo. Stat Ann., p. 1564) pertaining to...