Wells v. Wells

• Decision Date: 05 April 1938
• Docket Number: No. 24505.,24505.
• Citation: 115 S.W.2d 94
• Parties: WELLS v. WELLS.
• Court: Missouri Court of Appeals

115 S.W.2d 94

WELLS v. WELLS.

No. 24505.

St. Louis Court of Appeals. Missouri.

April 5, 1938.

Rehearing Denied April 20, 1938.

Appeal from St. Louis Circuit Court; Wm. S. Connor, Judge.

"Not to be published in State Reports."

Suit for divorce by Joseph Briggs Wells against Era McQueen Wells, wherein defendant was granted a divorce on a cross-bill but was denied custody of a minor child and was allowed alimony in gross. From an order granting defendant's motion for the allowance of alimony pending her appeal from the decree of divorce and for suit money for the prosecution thereof, the plaintiff appeals.

Affirmed.

Bass & Bass and John Grossman, all of St. Louis, for appellant.

Albert E. Hausmann, Jones, Hocker, Gladney & Grand, and Warren F. Drescher, Jr., all of St. Louis, for respondent.

SUTTON, Commissioner.

This is a divorce suit. The court granted defendant a divorce upon her cross-bill, awarded plaintiff the custody of Jo Ann, a minor child born of the marriage, and allowed defendant $5,000 as alimony in gross.

Within four days after the rendition of this judgment, and during the term at which the judgment was rendered, defendant filed the following motion:

"Now comes the defendant and moves the Court to modify its decree entered herein in the following respects, to wit:

"(1) Said modification to grant the custody and care of said minor child, Jo Ann, to this defendant instead of to plaintiff; and

"(2) To allow the defendant $300 per month alimony instead of and in place of said alimony in gross as allowed by said decree.

"And, for grounds for this motion, states:

"(1) Under the pleadings and the evidence in this case, and under the law applicable to this case, the custody of the said child, Jo Ann, should have been granted to this defendant.

"(2) The pleadings and evidence in this case prove that the welfare of the child, Jo Ann, requires that she be placed in the custody of this defendant.

"(3) This defendant, as the mother of said child, has a right to the custody of said child unless same has been forfeited by some misconduct on her part, and no such misconduct is shown by the evidence in this case.

"(4) The amount awarded as alimony in gross in this case is inadequate in view of the circumstances of the parties as disclosed by the evidence.

"(5) Under the pleadings and the evidence in this case an allowance of permanent alimony at the rate of $300 per month is just and fair, and no more than the plaintiff is able and should be willing to pay."

The court overruled said motion, and the defendant duly appealed the cause to this court.

Thereupon, defendant filed her motion for the allowance of alimony pending her said appeal and suit money for the prosecution thereof. The court sustained said motion, and ordered plaintiff to pay defendant during the pendency of her said appeal $115 per month for her support, and to pay her attorneys $400 as and for their fee in prosecuting her said appeal, and $285 to cover the costs thereof. From said order plaintiff has appealed to this court.

Plaintiff urges here that defendant was not entitled to an allowance of alimony or suit money pending her appeal, for the reason that she did not file a motion for a new trial, and not having filed a motion for a new trial she is precluded from prosecuting her appeal. Defendant contends that the so-called motion to modify the judgment amounts to a motion for a new trial, and is sufficient to bring up for review on its merits the decision of the court respecting alimony and the custody of the minor child.

The filing of a motion for a new trial is, of course, not an essential to the right of appeal, though it is an essential to a review of the case respecting matters of exception.

However, we are of the opinion that defendant's so-called motion to modify the judgment is in substance and effect a motion for a new trial. It was filed at the judgment term and within four days after the rendition of the judgment. It called upon...