Swenson v. Swenson

• Decision Date: 09 January 1950
• Docket Number: No. 21231,21231
• Citation: 241 Mo.App. 21,227 S.W.2d 103,20 A.L.R.2d 1409
• Parties: , 20 A.L.R.2d 1409 SWENSON v. SWENSON.
• Court: Missouri Court of Appeals

Page 103

227 S.W.2d 103

241 Mo.App. 21, 20 A.L.R.2d 1409

SWENSON v. SWENSON.

No. 21231.

Kansas City Court of Appeals, Missouri.

Jan. 9, 1950.

Duvaul P. Strother, Charles M. Miller, Kansas City, for appellant.

Cortner & Beals, Dwight Beals, Kansas City, for respondent.

BROADDUS, Judge.

This is an appeal by the defendant from an order overruling his motion to quash an execution. On June 18, 1936, in the Circuit Court of Jackson County, Missouri, at Kansas City, plaintiff was granted a divorce from defendant. The decree awarded to her the care, custody and control of the minor son, George Edward Swenson, age nine years, born of the marriage. It further ordered that defendant pay to plaintiff for the support and maintenance of said minor son, the sum of $50 per month until September 1, 1940, and $100 per month thereafter until said minor son reached his majority. Defendant made all of the payments that were required by said divorce decree up to and including the month of June, 1945. On June 25, 1945, the minor son, George Edward Swenson was inducted into the United States Army at Ft. Leavenworth, Kansas, he having previously enlisted on October 23, 1944, with the written consent of plaintiff. He remained in the Army until he was officially discharged in San Francisco on September 20, 1948, having attained the age of 21 on April 10, 1948.

Plaintiff testified that she consented to the enlistment of her son and, after his induction into the army, said nothing about expecting payments by defendant and made no request or demand for the support and maintenance of the son under the divorce decree until April 7, 1948, 3 days before the son became 21 years of age, at which time he was in the army stationed in Korea, when defendant received a letter from the attorney for plaintiff requesting payment. Plaintiff admits that she did nothing towards supporting the son while he was in the army, other than to send him small gifts. Defendant made no further payments after June 1, 1945. On May 15, 1948, plaintiff caused the execution in question to be issued. Defendant, on May 17, 1948, filed his motion to quash and set forth three grounds, the third being:

'That said judgment was rendered in favor of the plaintiff and against this defendant for support and maintenance of their minor child, George Edward Swenson, and that the said minor child became emancipated on or about the ___ day of September, 1944, by the enlistment of said George Edward Swenson with the consent of the plaintiff, Lucille E. Swenson, his mother, in the United States Army'. As stated the court overruled said motion to quash and defendant duly appealed to this court.

Defendant contends that his motion to quash the execution should have been sustained because plaintiff admits that she consented to her son's enlistment and induction into the United States Army, and that he, thus, became emancipated on June 25, 1945, and that, thereafter, she did not have the care, custody and control of the son and was, therefore, not entitled to be paid for his support.

Plaintiff contends that the decree of divorce was final and in full force and effect until the child reached his majority, or, until modified by proper procedure, and the court had no jurisdiction to modify it retroactively. The question before us seems never to have been passed upon by the appellate courts of this state. Extensive search on our part has not disclosed a decision elsewhere determining it.

When defendant's motion to quash was overruled he filed no motion for a new trial. In view of this plaintiff says there is nothing before us except the record proper. This is a misconception of the law. Wyoma Leather Co. v. Modern Hat & Cap Mfg. Co., Mo.App., 67 S.W.2d 815 and cases there cited. Plaintiff likewise contends that defendant's appeal should be dismissed for the reason that his statement of facts is not complete. We think the statement contains a fair and concise statement of the facts without argument and, therefore, complies with Rule 1.08 of the Supreme Court.

Plaintiff relies upon the case of Nelson v. Nelson, 282 Mo. 412, 221 S.W. 1066, 1069. She quotes extensively from that case in her brief. That leading case held that remarriage by a divorced wife does not ipso facto dissolve the obligation of her former husband to pay alimony, but the judgment, therefore, stands in full force until modified by the court pronouncing it. The reason underlying the court's holding in that case is that the court found the general rule to be that remarriage had no direct effect upon the judgment for alimony. This being so, it merely affords a basis upon which the court, upon application of the former husband, may modify or annual it. The court held that the term 'alimony' in its true sense represents 'the allowance of such a sum of money in gross or in installments as will fairly and reasonably compensate her (the divorced wife) for the loss of her support by the annulment of the marriage contract. * * * It may be deemed an assessment of damages in her favor for breach of the contract by the husband.' That holding does not govern the case at bar, because here a different situation is presented. When a minor enlists in the Military Service of the Nation, it gives rise to a new relation inconsistent with the control and care of the parent. As stated in Iroquois Iron Co. v. Industrial Commission, 294 Ill. 106, 128 N.E. 289, 290, 12 A.L.R. 924, 925, 927: 'When...