Welsh v. Welsh

• Decision Date: 07 April 1936
• Docket Number: No. 23875.,23875.
• Citation: 93 S.W.2d 264
• Parties: TERESE G. WELSH, APPELLANT, v. GEORGE W. WELSH, RESPONDENT.
• Court: Missouri Court of Appeals

93 S.W.2d 264

TERESE G. WELSH, APPELLANT, v. GEORGE W. WELSH, RESPONDENT.

No. 23875.

St. Louis Court of Appeals. Missouri.

Opinion filed April 7, 1936.

Motion for rehearing overruled April 28, 1936.

Appeal from the St. Louis Circuit Court. — Hon. M. Hartman, Judge.

REVERSED AND REMANDED.

Banister, Leonard, Sibley & Susman for appellant.

(1) Even an ordinary money judgment must be definite and certain as to amount. 33 C.J., p. 1201. (2) A judgment or decree for alimony is different from a money judgment at law. It adjudicates the amount due, and then contains an order or command on the husband to pay the amount or amounts found to be due at certain specified times. It must be even more definite and certain than a money judgment at law. Schuler, Marriage and Divorce (6 Ed.), sec. 1835, p. 1998; 2 Nelson, Divorce and Separation, p. 904; Words and Phrases (2d Series), p. 1251, "Decree for Alimony;" 19 C.J., p. 292, secs. 668, 670; Andrews v. Superior Court (Calif.), 284 Pac. 494; Section 1355, R.S. Mo. 1929. (3) If a doubt exists about the meaning of a decree or judgment, the pleadings should be looked to, as well as the minutes or entries of the clerk, the evidence introduced, etc. Sanders v. Sheets, 287 S.W. 1069, 1072; Calnane v. Calnane, 17 S.W. (2d) 566. (4) Matters and things collateral to the issues made by the pleadings, and outside the evidence and the matters tried and decided by the court, are not strictly a part of the real decree or judgment, and are not adjudicated, though they be referred to in the decree or judgment. The approval of the agreement was collateral, and was not really a part of the decree. Herd v. Tuohy, 133 Cal. 55, 65 Pac. 139; People v. Spring Lake D. & L. Dist., 253 Ill. 479; Barkhoefer v. Barkhoefer, 93 Mo. App., l.c. 381, 382; and cases cited below in Point No. 8. (5) The divorce court must enter its decree for alimony at the time of the granting of the divorce, or at least during the term at which the divorce is granted, or the court loses all jurisdiction over the question of alimony. Herbert v. Herbert, 299 S.W. 840. (6) Post-nuptial property settlement agreements, if not appearing to contain elements of fraud or collusion by the parties to obtain a divorce, are valid and binding. O'Day v. Meadows, 194 Mo. 588; Crenshaw v. Crenshaw, 276 Mo. 471; Gilsey v. Gilsey, 195 Mo. App. 407. (7) Such property settlement agreements, particularly if made while a divorce suit is pending, should be shown to the divorce court to avoid imposition or fraud, and to further assure the validity of the agreement. The most satisfactory way to present the agreement to the divorce court is to have the agreement filed and the court approve the agreement. Speck v. Dausman, 7 Mo. App. 165; 2 Bishop, Marriage, Divorce and Separation, secs. 884 and 885. (8) The mere filing of a complete property settlement agreement between the parties with the clerk after the divorce has been granted, and the court approving such property settlement, is not the entry of a decree or judgment for alimony. Moore v. Crutchfield, 136 Va. 20, 116 S.E. 482; DeHart v. DeHart, 180 S.E. 307; Barnes et al. v. Am. F. Co., 130 S.E. 902, 144 Va. 692; Baxter v. Baxter, 40 Pac. (2d) 536; Andrews v. Superior Court, supra; Schneer v. Schneer, 17 Pac. (2d) 749, 128 Cal. App. 363; Keene v. Keene, 241 Ill. App. 414; Smith v. Johnson, 321 Ill. 134, 151 N.E. 550. (9) On the other hand, the inclusion in the decree of the property settlement agreement in haec verba, and the decree ordering that alimony be paid in accordance with the property settlement agreement, is the entry of an alimony judgment, which is not the case at bar. Hayes v. Hayes, 75 S.W. (2d) 614; Tripp v. Superior Court, 214 Pac. 252, 61 Cal. App. 64; Gloth v. Gloth, 153 S.E. 879. (10) An independent suit will lie on the complete property settlement agreement, despite its "approval" by the divorce court. Cases cited, supra, under Point No. 8; Kelly v. Kelly, 47 S.W. (2d) 762, 329 Mo. 992.

Dubinsky & Duggan for respondent.

(1) (a) Where the statute itself or the decree of divorce provides for modification with reference to alimony, an order for alimony in a decree for divorce, being subject to modification at any time by the court which made it, and that court having full power to enforce it, it is not such a judgment for money that at action at law can be maintained upon it. Mayer v. Mayer, 154 Mich. 386, 19 L.R.A. (N.S.), 245, 117 N.W. 890, 129 Am. St. Rep. 477; Lynde v. Lynde, 41 App. Div. 280, 58 N.Y. Supp. 567, 162 N.Y. 405, 48 L.R.A. 679, 56 N.E. 979, 181 U.S. 183; Israel v. Israel, 79 C.C.A. 32, 148 Fed. 576; Barclay v. Barclay, 184 Ill. 375, 51 L.R.A. 351, 56 N.E. 636; Nixon v. Wright, 146 Mich. 231, 109 N.W. 274; Page v. Page, 189 Mass. 85, 75 N.E. 92; Freund v. Freund, 71 N.J. Eq. 524, 63 Atl. 756; Sistare v. Sistare, 80 Conn., 66 Atl. 772; Wells v. Wells, 209 Mass. 282, 95 N.E. 845, 35 L.R.A. (N.S.), 561. "Subsequent motion to have decree for alimony modified is not a new suit; but is a mere continuation of the original proceeding or jurisdiction." Cole v. Cole, 89 Mo. App., l.c. 233; Wald v. Wald, 168 Mo. App., l.c. 383. (b) "A case cannot arise in which an action shall actually be brought upon a domestic judgment." DeGraw v. DeGraw, 7 Mo. App., l.c. 130. (c) "A proceeding to set aside a divorce must be brought in the court in which the decree was rendered." DeGraw v. DeGraw, 7 Mo. App., l.c. 132. (d) Where the court has jurisdiction, however erroneous or irregular its proceedings may be, they are regarded as valid and binding until they are reversed or annulled by suitable proceedings instituted for that purpose. DeGraw v. DeGraw, 7 Mo. App., l.c. 128, 129; Jones v. Talbot, 9 Mo. 123; McNair v. Biddle, 8 Mo. 266; Fithian v. Monks, 43 Mo. 521; Martin v. McClean, 49 Mo. 361. (e) "The allowance for alimony may be enforced by attachment or execution." Waters v. Waters, 49 Mo., l.c. 388. (f) "Payment of such alimony may undoubtedly be enforced by execution and sequestration of property." State ex rel. Dawson v. St. Louis Ct. App., 99 Mo., l.c. 222. (g) "If a decree of divorce is to be attacked, this should be done in some proceeding instituted directly for that and before the tribunal granting the decree, or by way of review in an appellate tribunal, and not by being made one of the issues in another suit." DeGraw v. DeGraw, 7 Mo. App., l.c. 132. (h) "In Missouri divorce proceedings are purely statutory. All the legislation we have on the subject of divorce is governed by Chapter 7, Article 3, Revised Statutes of Missouri, 1929, under the head of `Divorce and Alimony.' There being no common law jurisdiction in our circuit court to dissolve the bonds of matrimony or to allow alimony, we must look to the statutes of our own State for the power to do so. The legislation in respect to both of these subjects (divorce and maintenance) is complete in itself, and prescribes the mode of procedure. The procedure in both chapters (Divorce and Maintenance) is special and confined to a special object; therefore, it is beyond the power of the courts, or of the parties, by consent or otherwise, to engraft any other action, by way of counter claim or otherwise upon a proceeding under either of these chapters (those relating to divorce and maintenance) not specially provided for therein." Sharpe v. Sharpe; 134 Mo. App., l.c. 281. "It should be conceded that the jurisdiction of the courts in this State to hear and determine suits for divorce and alimony depends upon and is limited by the statutes." Chaplain v. Chaplain (Mo.), 192 S.W., l.c. 449; Doyle v. Doyle, 26 Mo. 545; McIntyre v. McIntyre, 80 Mo. 70; State ex rel. v. Grimm, 239 Mo. 340, 143 S.W. 450; Watts v. Watts (Mo.), 263 S.W., l.c. 422. "It is historical and elementary, that under the common law rule the jurisdiction over divorce cases rested entirely with the ecclesiastical courts of the Realm, but in the several States of the Union that jurisdiction is purely statutory, and rests alone with those courts upon which it has been expressly conferred by legislative enactments." State ex rel. v. Grimm, 239 Mo., l.c. 353; 2 Bishop on Marriage and Divorce, secs. 801 and 1185; 1 Bishop on Marriage and Divorce, sec. 128. (2) (a). Voluntary settlements between husband and wife of the property interests between the parties pending a divorce suit are not only lawful, but are to be commended. Such settlements are binding and stipulations and agreements become merged in the judgment. 19 Corpus Juris, page 340, section 787; Warren v. Warren (Minn.), 133 N.W. 1009. (b) An agreement between parties contemplating a divorce, making provision for permanent alimony that would be suitable and agreeable to them, will, as a rule, be adopted by the trial court and embodied in the decree. Hayes v. Hayes (St. L. Ct. of App.), 75 S.W. (2d) 614; Brown v. Brown, 209 Mo. App. 416, 239 S.W. 1093; Francis v. Francis, 192 Mo. App. 710, 179 S.W., l.c. 975-78-79-80; Meyers v. Meyers, 91 Mo. App. 151; Kinsella v. Kinsella, 60 S.W. (2d) 747; Holmes v. Holmes (Ark.), 53 S.W. (2d) 226; Platke v. Platke, 177 Ill. App. 344; Kelley v. Kelley (Mich.), 160 N.W. 397; Warren v. Warren (Minn.), 133 N.W. 1009; 19 Corpus Juris, page 271, section 617; 1 Ruling Case Law, page 941 and cases cited. (c) Under the express language of Missouri statutes and cases supporting same, the court granting a decree of divorce with permanent alimony has the power, upon a proper motion filed in the original cause, to modify the decree as to alimony. Section 1355, Revised Statutes of Missouri, 1929; Hayes v. Hayes (St. L. Ct. App.), 75 S.W. (2d) 614; Schmidt v. Schmidt, 26 Mo., l.c. 236; Brown v. Brown, 209 Mo. App. 416, 239 S.W. 1093; and Missouri cases too numerous to quote. (3) While a stipulation for alimony and division of property between husband and wife will, in the absence of fraud or imposition, generally be adopted by the court, yet such stipulation is only advisory, and...