Watts v. Watts

• Decision Date: 16 June 1924
• Docket Number: No. 24028,24028
• Citation: 263 S.W. 421,304 Mo. 361
• Parties: WATTS v. WATTS
• Court: Missouri Supreme Court

263 S.W. 421

304 Mo. 361

WATTS v. WATTS

No. 24028

Supreme Court of Missouri, Division No. 2.

June 16, 1924.

Error to Circuit Court, Jackson County; James H. Austin, Judge.

Suit by Ruby C. Watts against Hardy C. Watts. Decree for plaintiff, and defendant brings error. Reversed in part, and cause remanded with directions.

Hardin B. Manard, of Kansas City, for defendant in error.

L. A. Knox, of Kansas City, for defendant in error.

WHITE, J.

On May 31, 1921, in the circuit court of Jackson county, the defendant in error obtained a decree of divorce from the plaintiff in error.

The trial court found that the defendant in error, Ruby C. Watts, was the innocent and injured party; that there was born of the marriage one daughter, who, at the time of the trial, was 8 years of age; that the defendant in the divorce suit, Hardy C. Watts, owned real estate in Jackson county, Mo., to wit, lot 9, in block 2, in Mt. Evanston addition, subject to the ineumbrance of 8800; and that the defendant also owned certain household goods and effects now located on the said real estate.

The judgment dissolved the bonds of matrimony theretofore contracted between the parties, and awarded permanent custody of the child to the plaintiff, decreed that all the household goods belonging to the plaintiff and defendant, or to either of them, excepting the wearing apparel of the defendant, be awarded to the plaintiff, free from all right, title, and interest of the defendant; that the plaintiff be awarded, subject to existing liens and incumbrances, all the defendant's right, claim, title, and estate in the said real estate, and the defendant be ordered and required to execute a conveyance of said real estate to the plaintiff, and on failure to do so that the decree stand in lieu of said conveyance.

Before the trial of the case the court issued a temporary restraining order, restraining the plaintiff from disposing, or attempting to dispose, of any of the property, real and personal, mentioned in the plaintiff's petition, and later covered by the decree. In the decree this temporary restraining order was made permanent.

From that decree the defendant prosecuted his writ of error to this court.

I. Plaintiff in error assigns two errors: First, that the court erred in attempting to vest in plaintiff the title to the personal and real property of defendant, and that the court was without jurisdiction to do so. Second, the trial court erred in making permanent the temporary restraining order, theretofore issued.

The jurisdiction of the courts of this state to hear and determine suits for divorce and adjudge alimony depends upon and is limited by the statutes. Chapman v. Chapman, 269 Mo. 663, 192 S. W. 448. The allowance of alimony on granting a decree of divorce to the wife is governed by sections 1806, 1807, R. S. 1919.

Section 1808 provides that when the wife is the plaintiff the court may grant such alimony and maintenance for the wife and children as shall be reasonable, and "order the defendant to give security for such alimony and maintenance," and should he neglect to give security "may award an execution for the collection thereof, or enforce the performance of the judgment or order by sequestration of property, or by such other lawful ways and means as is according to the practice of the court."

Section 1807 provides that when alimony is decreed in gross the decree shall he a general lien upon the realty of the party against whom the decree is rendered, etc.

Nothing in these sections can be construed to give the court authority to divest the judgment defendant of his title to real or personal property, and vest the same in plaintiff. "Sequestration," as used in that section of the statute, means a setting apart of the property so that it may be subject to execution and payment of the judgment. Where decree of divorce is awarded to the wife, the court is entirely without jurisdiction to vest in her, as a part of her alimony, the title to property, real and personal owned by the husband. Ecton v. Tomlinson, 278 Mo. 282, loc. cit. 287, 288, 212 S. W. 865; Aylor v. Aylor (Mo. Sup.) 186 S. W. 1071; Davison v. Davison, 207 Mo. 702, 106 S. W. 1.

The judgment, therefore, is void so far as it attempts to effect that result. The trial court, also, had no authority permanently to enjoin the defendant from transferring his property.

II. It is claimed that, because the judgment attempting to divest the title to the real estate is void, this court is without jurisdiction of the appeal. The title to real estate is directly affected by the judgment so as to give this court jurisdiction, although the judgment is void on its face. This is the court to determine the question whether the judgment, which in form transfers property from one party to another, has that effect. This court will entertain jurisdiction of a suit to remove a cloud upon a title, where it is held that the suit would not lie because there was no cloud. Clark et al. v. Covenant Mutual Life Ins. Co. of St. Louis, 52 Mo. 272; Hannibal & St. Joe Railroad Co. v. Nortoni, 154 Mo. 142, 55 S. W. 220; Bayless et al. v. Gibbs et al., 251 Mo. 492, 158 S. W. 590; Senter v. Wisconsin Lumber Co., 255 Mo. 590, 134 S. W. 501. The fact that the alleged cloud is not a cloud does not give the Court of Appeals jurisdiction of the appeal, because this is the court to determine whether or not the title is clouded.

The defendant in error has filed no brief in this court. The plaintiff in error asks that so much of the decree as vests his title to real estate and personal property in the defendant in error be declared void. The judgment therefore, so far as it attempts to transfer the title to his property to his wife, is reversed.

No error is complained of affecting the merits of the case. The cause is remanded, with directions to the court to proceed with the award of alimony, according to the...