State ex rel. Weisheyer v. Haid

• Decision Date: 19 February 1930
• Docket Number: 29803
• Citation: 26 S.W.2d 939
• Parties: STATE ex rel. WEISHEYER v. HAID et al., Judges
• Court: Missouri Supreme Court

26 S.W.2d 939

STATE ex rel. WEISHEYER v. HAID et al., Judges

No. 29803

Supreme Court of Missouri, Second Division

February 19, 1930

Motion for Rehearing Overruled April 7, 1930.

Conrad Paeben, of St. Louis (Henry E. Haas, of St. Louis, of counsel), for relator.

Fred Armstrong, Jr., of St. Louis, for respondents.

WHITE J., concurs.WALKER, J., absent.

OPINION

BLAIR P. J.

This is an original proceeding by certiorari wherein relator seeks to quash the opinion of the St. Louis Court of Appeals in a case lately pending there, in which relator was respondent, and Henry Weisheyer, her husband was appellant. Said appeal was from a judgment of the circuit court of the city of St. Louis in a case in which relator (plaintiff) procured a judgment against her husband for separate maintenance. The St. Louis Court of Appeals reversed said judgment, and remanded the case, with directions to the trial court to dismiss the petition of plaintiff (relator here). The opinion rendered by respondent judges is said to be in conflict with certain decisions of this court.

The facts essential to an understanding of the case are gleaned from respondents' opinion. Relator's husband filed suit against her for divorce. Relator contested that suit but did not ask for alimony or maintenance pending the trial. On the hearing, the husband was denied a divorce and took an appeal to the St. Louis Court of Appeals. That appeal was later made the subject of a decision reported in 6 S.W.(2d) p. 989. No motion for maintenance or suit money pending the disposition of the said appeal was filed by relator. Soon after the granting of said appeal, and during its pendency in the St. Louis Court of Appeals, relator filed her suit for separate maintenance, obtained judgment, and defendant therein (her husband) again appealed. The opinion disposing of the last appeal is the one questioned here.

One of the defenses made by the husband was the pendency of the divorce case. The trial court sustained relator's demurrer to such plea. In discussing the contention that the trial court erred in said ruling, respondents said:

'Was the Circuit Court in the present case authorized to hear and determine the question of separate maintenance in view of the pendency of the divorce proceeding? Sec. 1806 of the Revised Statutes of Missouri 1919 provides, among other things, that the court (in which the divorce suit is pending) 'may decree alimony pending the suit for divorce in all cases where the same would be just, whether the wife be plaintiff or defendant,' etc. and, as we view it, precludes any other action having for its purpose the like relief. 30 C. J. 1076.

'The provisions of the Maintenance Statutes have a purpose -- that is, to enable a wife, who does not desire to seek a divorce, to nevertheless compel her husband to furnish her that support to which she is entitled by reason of the obligation which the husband assumed when they entered into their union. But when an action for divorce has been instituted by either of the parties, then the Court having jurisdiction of such action is vested with the entire jurisdiction to determine not only the question of divorce or no divorce, but also all questions relating to support and maintenance, as well as suit money, pending such proceeding, as well as the question of the care and custody of the children of the couple, if any. In the case of Isbell v. Weiss, 60 Mo.App. loc. cit. 55, this Court held that whether alimony includes suit money and support money is itself a mere incident to the action for divorce and can only be given as an incident to the suit and under the provision of the statute.

'It seems obvious to us that when jurisdiction has attached by virtue of a divorce proceeding, that Court becomes vested with the exclusive power to determine what support, if any, shall be awarded, because, whether there has been such an abandonment as is contemplated by Sec. 7314 must depend upon the final outcome of the ruling of the Court in the divorce proceeding.

'The sole question to be determined under the provisions of the abandonment section is whether the husband, without good cause, has abandoned his wife and neglected and refused to support her (Sharpe v. Sharpe, 134 Mo.App. loc. cit. 282, 114 S.W. 584) and consequently, under that statute, unless she establishes that fact she would not be entitled to relief.

'Undoubtedly to avoid a situation of this sort the present provisions of the statute were adopted for the purpose of securing support to the wife, pending a divorce proceeding, whether she be plaintiff or defendant, and irrespective of the validity of the grounds upon which the divorce is sought. The right of the Circuit Court in the divorce proceeding to determine this question inheres to the end of the litigation, even during the pendency of an appeal from a decree adjudging or refusing to adjudge a divorce (State ex rel. Kranke v. Calhoun [Mo. Sup.] 232 S.W. 1038 [Id., 206 Mo.App. 298], 227 S.W. 1080). Pending a divorce proceeding, therefore, the jurisdiction to determine the question of support is exclusively under the provisions of Sec. 1806.'

This ruling is said to be in conflict with the following controlling decisions of this court, to wit: State v. Gunzler, 52 Mo. 172; In re Estate of Henry Wood, 288 Mo. 588, loc. cit. 600, 232 S.W. 671, par. 3; State ex rel. Gercke v. Seddon, 93 Mo. 520, 6 S.W. 342, 343.

As this is a certiorari proceeding, which can be successfully prosecuted by relator only upon the ground that the St. Louis Court of Appeals exceeded its jurisdiction by violating its constitutional duty to follow the last previous ruling of this court (section 6 of 1884 Amendment to art. 6, Mo Const.), we are here concerned only with the question of the alleged conflict of opinion. We are not authorized to quash respondents' opinion because, perchance, we might conclude that they have not correctly decided the case. The decisions of this court cited by respondents in their brief sufficiently support this rule. State ex rel. Dean v. Daues (Mo. Sup.) 14 S.W.2d 990, 993; State ex rel. City of Macon v. Trimble (Mo. Sup.) 12 S.W.2d 727, 730; State ex rel. National Ammonia Co. v. Daues (Mo. Sup.) 10 S.W.2d 931, 932; State ex rel. Maclay v. Cox (Mo....