Viertel v. Viertel

• Decision Date: 30 May 1908
• Citation: 212 Mo. 562,111 S.W. 579
• Parties: VIERTEL v. VIERTEL.
• Court: Missouri Supreme Court

111 S.W. 579

212 Mo. 562

VIERTEL v. VIERTEL.

Supreme Court of Missouri, Division No. 1.

May 30, 1908.

1. EVIDENCE—JUDICIAL NOTICE—JUDGES.

The Supreme Court will take judicial notice of who is judge of the circuit court of a county.

2. SAME — PRESUMPTIONS — CONTINUANCE OF CONDITION SHOWN TO EXIST.

A status of things once shown to exist is presumed to continue until the contrary appears.

3. EXCEPTIONS, BILL OF—CONSTRUCTION OF BILL.

Narrations in a bill of exceptions that a cause was tried before a judge named, and that the regular judge was sick, and on that account unable to hold the term at which the cause was tried, and that the judge named by request of the regular judge held the term, and tried the cause among others, taken together, mean no more than that the judge named held the regular judge's term, not as a special judge in the particular cause on a change of venue, but in the place and instead of the regular judge, so that subsequent proceedings in the cause were not required to be before the judge named, but might be had before the regular judge.

4. JUDGES — SUBSTITUTE JUDGES—AUTHORITY OF.

Under Rev. St. 1899, § 1678 (Ann. St. 1906, p. 1219), providing that where a judge shall be sick, absent, or from any cause unable to hold a term of court, such term, by request of the judge, may be held by the judge of another circuit, who shall, during the period he shall so act, possess the same powers, and be liable to the same responsibilities, as the regular judge, the powers and responsibilities of a judge, requested to act for another, are limited to "the period he shall so act," and the regular judge thereafter has jurisdiction of the causes heard by the judge requested to act.

5. APPEAL AND ERROR—RECORD—MATTERS IMPROPERLY INCLUDED.

A contention that the judge who heard proceedings subsequent to the trial was without jurisdiction because not the judge before whom the trial was had cannot be considered, where the facts only appear by incidental narrations in the bill of exceptions, in connection with exception as to other matters.

6. SAME—RECORD—QUESTIONS PRESENTED FOR REVIEW.

An allegation, in a motion for new trial, that a judge named had jurisdiction, as the only judge competent to sit in the cause, does not prove itself.

7. COURTS—COURT OF APPEALS—JURISDICTION —DIVORCE—APPELLATE COURT.

The Court of Appeals has jurisdiction to determine the question of divorce, with power to reverse and remand, with direction to enter a certain judgment.

8. APPEAL AND ERROR—REVIEW—SUBSEQUENT APPEALS—JUDGMENT—CONCLUSIVENESS.

A judgment of the Court of Appeals, reversing a judgment of the lower court denying a divorce, and remanding the cause with direction to grant a divorce, is conclusive on the issue of divorce, both as to the trial court and the Supreme Court, on a subsequent appeal from the trial court.

9. DIVORCE—ALIMONY—PERMANENT ALIMONY —DISCRETION OF COURT.

The allowance of permanent alimony is a matter of sound judicial discretion, to be exercised with reference to established principles, and on a view of all the circumstances, such as the husband's estate and ability, the wife's condition and means, and the conduct of the parties.

10. SAME—LIABILITY FOR SUPPORT OF CHILDREN.

The liability of the father to support his minor children remains though, in divorce, their mother is awarded their custody, where the decree is silent on the subject.

11. SAME.

An award of $11,000 alimony was not exorbitant, where the husband had an estate of between $30,000 and $35,000, notwithstanding the decree left the burden of maintaining the two children on him.

Appeal from Circuit Court, Cooper County; Samuel Davis, Judge.

Divorce by Grace F. Viertel against William Viertel. Judgment for plaintiff, and defendant appeals. Affirmed.

See 123 Mo. App. 63, 99 S. W. 759.

John & J. W. Cosgrove, for appellant. W. F. Johnson and W. M. Williams. for respondent.

LAMM, J.

Born Fiscus, Grace F. (aged 26 years) intermarried in 1891, while a school teacher by vocation, with Viertel, a farmer, aged 30 years. Fourteen years later she sued for divorce in the Cooper circuit court, charging manifold indignities (setting them forth) rendering her condition intolerable, and asking alimony and the custody of two children, born of the twain, girls of tender years, Gladys and Mabel. She was cast, nisi, on a hearing on the merits. Thereat she appealed, in apt time and due order, to the Kansas City Court of Appeals. Viertel v. Viertel. 123 Mo. App. 63, 99 S. W. 759. There the judgment was reversed, and the cause remanded, with directions. Witness the following mandate: "Now at this day come again the parties aforesaid, by their respective attorneys, and the court here now, being sufficiently advised of and concerning the premises, doth consider and adjudge that the judgment aforesaid, in form aforesaid, by the said circuit court of Cooper county rendered, be reversed, annulled, and for naught held and esteemed, and that the said appellant be restored to all things which she has lost by reason of the said judgment. It is further considered and adjudged by the court that the said cause be remanded to the said circuit court of Cooper county, with directions to enter up a decree of divorce in favor of plaintiff, and to adjudge to her alimony and to fix the amount and decree the care and custody of the children as may be right and proper, in conformity with the opinion of this court herein delivered, and that the said appellant recover against the said respondent costs and charges herein expended, and have therefor execution." When that mandate came down, the cause was redocketed for disposition in due course. Thereat defendant, to mend holds, tendered an amended answer, making more specific his grounds of defense, and adding thereto a cross-bill of countercharges, to the effect that plaintiff had offered him such indignities (naming them) as rendered his own condition intolerable, and had absented herself from his home, without reasonable cause, for a space of one year next before the filing of the answer and cross-bill, wherefore he prayed a divorce, with the care and custody of Gladys and Mabel. On consideration the trial court was of opinion that, under the decision and mandate of the Kansas City Court of Appeals, all questions open at the time of the first trial were concluded. The effect of this ruling was to refuse defendant the right to file his amended answer and cross-bill. The point was saved by exception. Thereat the cause went to trial on the theory that only two questions were involved, viz., (1) the amount of alimony; and (2) the custody of Gladys and Mabel. It was agreed that testimony, preserved in the bill of exceptions, made when the cause was taken to the Court of Appeals, should be read as evidence. Defendant offered it as evidence on the right of a divorce. The court refused to permit it on that question, but permitted it on the issues of the custody of the children and the amount of alimony. The point was preserved by exception. The trial resulted in a decree in favor of the mother for divorce, with custody of the children (subject to the right of the father to visit them and have them visit him, at intervals and times specified in the decree) and for alimony in gross in the sum of $11,000. In due time defendant filed his motion for a new trial, and, the motion being overruled, tendered his affidavit for appeal to this court. Pending the perfecting of that appeal, plaintiff filed her motion for alimony pendente lite, covering support and maintenance during, and attorney's fees incident to, the appeal. This motion being allowed, it was adjudged that defendant pay plaintiff $75 on the first of every month, beginning December 1, 1907, until the case be finally determined; said payments to be credited on the principal judgment for alimony in gross. Further, that plaintiff recover of defendant $350 for costs, expenses, and attorney's fees to be incurred in the prosecution of the appeal, and that execution issue for said amounts on failure to pay when due and demanded. Thereupon defendant filed his motion for a new trial, directed to the subsidiary judgment, and, it being overruled, filed his several affidavits for appeal from the principal as well as the subsidiary judgment. Thereupon an appeal was allowed, and the cause comes here for final disposition.

Any facts necessary to a just disposition of the case will appear in connection with the consideration of material questions made. As we see it, those questions appear as alleged errors, in that: (a) Judge Martin, who tried the case the second time, had no jurisdiction; Judge Davis, who tried it the first time, had jurisdiction. (b) The judgment of the Kansas City Court of Appeals was not res adjudicata on the question of divorce, is not binding on this court. Our jurisdiction attaches to the whole case, including the right to a divorce. Therefore there was error nisi in refusing to file defendant's amended answer and cross-bill and to hear evidence in support thereof. (c) Looking well to the whole case, plaintiff was not entitled to a divorce on the facts disclosed, for sundry reasons; for instance, the isolated acts of indignity shown did not constitute a course of conduct, and hence were insufficient as statutory grounds. (d) The wife, counter to the husband's wish and protest, kept her mother as a member of the family. The mother-in-law was the disturbing factor in the case— the bitter spring from which all the bad matrimonial water flowed. Hence the trouble was of plaintiff's own making. (e) Under the facts here, any and all indignities were condoned by cohabitation. (f) In view of the fact that the decree does not place upon the mother the burden of educating, supporting, and maintaining Gladys and Mabel, and does not relieve the father from that burden, the award of alimony is grossly excessive. Is there soundness in any of the foregoing assignments of...