Wilton v. Wilton, 21390
| Decision Date | 04 December 1950 |
| Docket Number | No. 21390,21390 |
| Citation | 235 S.W.2d 418 |
| Parties | WILTON v. WILTON. |
| Court | Missouri Court of Appeals |
Preston H. Longino, Kansas City, for appellant.
Thomas C. Swanson, Kansas City, for respondent.
BOUR, Commissioner.
This is an appeal from an order modifying the provisions of a divorce decree relating to the custody of two minor children. The wife, appellant herein, was the plaintiff in the original divorce action which resulted in the entry of a decree in her favor on March 8, 1947. Plaintiff was awarded custody of the parties' minor children, Joseph Wilton, Jr., and Joenne Wilton, with an allowance of $200 a month for the support of the children. The decree included a provision that defendant should have the right to visit the children 'at all reasonable times upon reasonable notice.' There was no appeal from that decree.
On October 10, 1947, the court entered an order modifying the decree so as to provide that defendant should have the custody of the children 'on Friday evening from 5:30 p. m. to 10:00 p. m., and on Sunday evening from 2:00 p. m. to 8:00 p. m. of each week until the further order of the court.' No appeal was taken from this order.
On June 6, 1949, defendant filed a motion which reads as follows: 'Comes now defendant, Joseph C. Wilton, and moves the court to make such orders as may be necessary to cause the children, Joenne and Joseph, Jr., to be domiciled with the defendant in Kansas City, Missouri, during June, July, and August, 1949, or so much thereof as the court may deem fair and reasonable.' It will be noticed that the motion does not allege any change in conditions after the entry of the order of October 10, 1947.
No objection was made to the sufficiency of defendant's motion and the parties proceeded to trial on July 29, 1949. At the conclusion of the hearing the court entered the following order:
On August 6, 1949, plaintiff filed a motion to set aside the above order, and in the alternative a motion for a new trial in the event the motion to set aside was not sustained. As the basis for her motions, plaintiff charged that defendant's motion to modify the decree was not sufficient to support the court's order; and that there was no evidence of any change in conditions which would warrant the modification of the decree. Since plaintiff's motions were not passed on within ninety days after the filing thereof, they were deemed overruled. Laws 1943, p. 389, sec. 118, Mo.R.S.A. Sec. 847.118; Supreme Court Rule 3.24. In due time thereafter plaintiff appealed from the order modifying the decree.
Plaintiff first questions the sufficiency of defendant's motion to modify the divorce decree. It is settled law in this state that the provisions of...
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Smith v. Smith, 32966
...a divorce decree is itself treated as a petition in an original action. North v. North, 339 Mo. 1226, 100 S.W.2d 582, and Wilton v. Wilton, Mo.App., 235 S.W.2d 418, 419. Such motions are not 'mere adjuncts to the original proceeding,' Olson v. Olson, Mo.App., 184 S.W.2d 768, and while such ......
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Hayes v. Hayes
...as a petition in an original action. North v. North, 339 Mo. 1226, 1236, 100 S.W.2d 582, 587[13-15], 109 A.L.R. 1061; Wilton v. Wilton, Mo.App., 235 S.W.2d 418, 419[2, 3]; Burgess v. Burgess, 239 Mo.App. 390, 393, 190 S.W.2d 282, 284[1, 2]; Fernbaugh v. Clark, 236 Mo.App. 1200, 1208, 163 S.......
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Noll v. Noll
...of action based upon new facts and circumstances and must state a cause of action on that theory. Hayes v. Hayes, supra; Wilton v. Wilton, Mo.App., 235 S.W.2d 418; Olson v. Olson, Mo.App., 184 S.W.2d It follows that the judgment should be reversed. It is so ordered. All concur. ...
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Roberts v. Roberts
...v. Samland, Mo.App., 277 S.W.2d 880; Prudot v. Stevens, Mo.App., 266 S.W.2d 756; Wilson v. Wilson, Mo.App., 260 S.W.2d 770; Wilton v. Wilton, Mo.App., 235 S.W.2d 418. This because, the court having theretofore made its judgment upon facts which existed at the time, the questions were resolv......