Creasey v. Creasey

REYNOLDS, P. J. Pending the determination of a suit for divorce between these parties, in which suit the wife, defendant, had filed an answer in the — 240 — nature of a cross-bill, the circuit court of Pike county, in which, the action was pending on change of venue from the Audrain Circuit Court, the court on the 4th of March, 1911, entered up the following order, properly entitled in the cause: “Now at this day come the parties herein by their respective attorneys, and the motion for alimony, attorney fees and suit money filed herein by the defendant coming on to be heard and being seen, heard and duly submitted, is by order of court sustained and it is ordered-by the court that plaintiff pay to defendant the sum of $150 attorneys’ fees and the further sum of forty dollars per month alimony the first installment due and payable this day and further installments due and payable on the fourth day of each succeeding month until otherwise ordered by the court and it is further ordered and adjudged by the court that the defendant have and recover of and from the plaintiff all costs and charges in and about this motion laid out and expended -and may have execution therefor.” , The husband (plaintiff) complied with the order of the court and paid the first installment of forty dollars on March 4,1911, but failed to pay the second and third installments of the alimony until an execution was issued and placed in the hands of the sheriff of Audrain county, the county of the residence of the plaintiff, under which levies were made and the execution satisfied. Not paying the fourth installment, due on the 4th of June, 1911, or any installment since that time, execution was issued for the June installment. The plaintiff thereupon filed his motion in the circuit court of Pike county to quash it. After hearing the testimony introduced by plaintiff and the defendant, the court declined to quash the execution. Prom an order to that effect plaintiff has duly perfected his appeal to this court. . The ground of refusal to pay this installment, due in June, 1911, and the ground upon which the motion to — 241 — quash the execution is based, is, that after the entry of the order of March 4, 1911, for the payment of further alimony pendente lite, judgment had been entered-in the divorce suit, awarding’ the defendant alimony in gross and that by force of this decree, the order for payment of monthly alimony pending the suit was no longer operative. The divorce case itself came on for hearing in the circuit court of Pike county and about March 12th was tried on the merits. On March 16, 1911, a decree was entered against the plaintiff, dismissing his suit and awarding the defendant a divorce on her answer. The decree further adjudged that defendant “have and recover from [plaintiff] as and for alimony in gross the sum of $2500 and for additional attorneys’ fee the further sum of $100', and that she have and recover her costs in this behalf expended and that she have execution therefor. ’ ’ The plaintiff duly perfected his appeal from this decree, executing an appeal bond, duly approved by the circuit court. Afterwards, the divorce case coming on for hearing before our court, a decree was entered here reversing the judgment of the circuit court in toto, and remanding the cause, “with directions to the circuit court to enter its judgment that the plaintiff take nothing by his petition and that the defendant take nothing by her answer, the defendant, however, to have and recover her costs in that behalf expended, the matter of an allowance to defendant for attorneys’ fees for services here and in the circuit court” being remitted to the circuit court. This judgment of reversal was entered by our court on the 12th of November, 1912. [See Creasy v. Creasy, 168 Mo. App. 68, 151 S. W. 219.] Divorce, with its incidents, is, in our State, entirely a statutory proceeding. It is provided by section 2375, Revised Statutes 1909, that “When a di — 242 — vorce shall be adjudged, the court shall make such order touching the alimony and maintenance of the wife, . . . as, from the circumstances of the parties and the nature of the case, shall be reasonable, and when the wife is plaintiff, may order the defendant to give security for such alimony and maintenance,” subject, however, to the right of the circuit court, when a decree of divorce has been granted and is in force, to “make such alteration, from time to time, as to the allowance of alimony and maintenance, as may be proper.” That same section also provides: “The court may decree alimony pending the suit for divorce in all cases where the same would be just, whether the wife be plaintiff or defendant, and enforce such order in the manner provided by law in other cases. ’ ’ We have no decision in our State which directly covers the point here in issue, but on consideration, have concluded that this last part of the section quoted is intended to apply, and can only apply, to the allowance of alimony until the matter of alimony is determined by the final decree in the cause in the circuit court. When, therefore, a decree is rendered in favor of the wife, whether -plaintiff or defendant, and alimony in gross allowed, we hold that that is not only a determination of the cause so that it is no longer said to be pending in the trial court, but that its effect is to vacate prior orders for alimony, in so far as concerns payment under them after the entry of the final decree ; that the final decree vacated what, in effect, are interlocutory orders, the whole matter of alimony being concluded by the final decree, subject to this, however, that after the rendition of the final decree, that decree not set aside, and not under appeal, it is within the power of the trial court to make such alterations as to alimony as may be proper, it being within the power of that court, in the final decree, or by amend — 243 — ment, to decree alimony payable in gross or in installments or from month to month or otherwise. It is also within the power of the trial court, in and by the final decree, in case of an appeal, to provide for the payment of suit money, counsel fees and alimony pending and covering the appeal. But this must be done in and by the final decree, or along with the granting of an appeal, if an appeal is taken. That it is within the power of the circuit court, and solely within its power so to do, is clearly settled by the decisions of our Supreme Court and of the Courts of Appeals. [See State ex rel. Clarkson v. St. Louis Court of Appeals, 88 Mo. 135 ; State ex rel. Gercke v. Seddon, 93 Mo. 520, 6 S. W. 342 ; State ex rel. Dawson v. St. Louis Court of Appeals, 99 Mo. 216 (cited as State ex rel. Dawson v. Rombauer et al., Judges, 12 S. W. 661); Dawson v. Dawson, 37 Mo. App. 207 ; Rosenfeld v. Rosenfeld, 63 Mo. App. 411 ; Lawlor v. Lawlor, 76 Mo. App. 293, and other cases following.] Prior to the decision in State ex rel. Clarkson v. St. Louis Court of Appeals, supra, our court had held that it was within our power to allow alimony, counsel fees and suit money after a cause had come to this court on appeal, but since the decision in that case the unquestioned rule in our State is, that it is within the power of the trial court alone to provide for alimony, counsel fees and maintenance, pending the appeal. In Watkins v. Watkins, 66 Mo. App. 468, it is held that the circuit court, after dismissing plaintiff’s petition in a divorce proceeding, has no jurisdiction pending a motion for new trial and before application for an appeal is made, to allow the plaintiff' alimony to prosecute an appeal. The effect of this is that unless an appeal is prosecuted from a final decree dismissing the action, there is nothing pending in the trial court on which to found an order for further payment of alimony or suit money. ' — 244 — A case decided in one of the districts of the Supreme Court of New York, that of Wood v. Wood, 7 Lansing (N. Y.), 204, states what we hold to be the law of the case so concisely that we feel warranted in quoting it at some length. • There judgment was rendered and entered in favor of the defendant in November, 1871. An appeal was taken by the husband,, plaintiff, from this judgment in January, 1872, but withdrawn in the succeeding July. There had been an order made in the action for alimony in favor of the defendant, pendente lite. The plaintiff paid this alimony until the entry of the.final judgment in November, 1871. After the withdrawal of the appeal, the defendant moved for an order to compel the plaintiff to pay alimony up to the time of the discontinuance of the action, that is, withdrawal of the appeal, and from an order to that effect made by the trial court, the plaintiff appealed. Under these facts the appellate court held that the order appealed from was erroneous. “The order for temporary alimony was superseded'by the judgment. That is the rule in respect to all orders made upon interlocutory applications. . . . The judgment concludes the parties on the subject of alimony, as well as other matters involved in the suit. If the husband ought to pay future alimony, a clause to that effect should be inserted in the judgment. If the judgment contain no such direction, and reasons exist for the continuance of temporary alimony pending an appeal from the judgment, a fresh application in some form should be made. . . . For the present it is sufficient to say that an interlocutory order for the payment of temporary alimony is not operative after judgment.” The order of the trial court allowing it consequently was reversed. Óur own statutes upon divorce, and alimony are so closely bottomed on those of New York, in as far as the point here before us is concerned, that we feel no hesitation in accepting this as correct and as applicable here. Other cases from otber — 245 — States, cited by counsel for appellant, are to the same effect. We are cited by counsel for respondent to no decisions to the contrary. It is true that those learned gentlemen have referred ns to Missouri cases, all of .which we have cited above, but none of them meet the point here in decision. The final judgment in the divorce case was •• appealed from and the appeal perfected, the plaintiff executing a bond which stood as security for the performance of the judgment, if affirmed, and the appeal was duly prosecuted. Nevertheless, the judgment itself stood in full force unless and until reversed on appeal. The effect of the appeal, a supersedeas being-given, was not to set aside the judgment, it merely suspended its operation and enforcement. Had an appeal bond not been given and approved, beyond all doubt the wife, defendant below, could have had. an execution for the amount of alimony awarded her in gross. We can come to no conclusion other than that the learned trial court, in refusing to quash the- execution here involved, did so on an erroneous view of the law. Its judgment must be and is reversed. Nortoni and Allen, JJ., concur.