Meyers v. Meyers , 91 Mo. App. 151 ( 1901 )

BLAND, P. J.

— It is contended by respondent’s counsel that the judgment of divorce'is final and conclusive as to both parties, on the question of alimony. We agree with the respondent’s learned counsel that so far as the alimony, in gross, is concerned, consisting of an award of specific property to plaintiff, the judgment is final; but it is not final as to the stipendiary alimony of thirty dollars per month. Both by the judgment and by the statute (sec. 2926, R. S. 1899), the order for monthly alimony is left open subject to the further, that is, future, orders of the court and is subject to such modifications from time to time as the changed condition of the parties in the future might justify.

II. It will be observed that the decree awarded the custody of the minor children to plaintiff, but nothing was said about their maintenance; nothing was allowed to the mother or to them for their future maintenance. The decree, as to the children, leaves the defendant in the same condition, in respect to them, as he was before the decree was entered, except, by his own wrong he was deprived of their custody; he is yet entitled to their earnings and is bound for their support. Keller v. St. Louis, 152 Mo. 596; Biffle v. Pullman, 114 Mo. l. c. 54; 2 Bishop on Marriage, Divorce and Separation, sec. 1223. In Penningroth v. Penningroth, 71 Mo. App. 438, this court held a father liable to the wife for the support of his child when he permitted it to remain with its mother after separation; and in Rankin v. Rankin, 83 Mo. App. 335, it was held by this court that where the father obtained a decree of divorce from the wife, mating no award of the custody of the children and which left them in the custody of their mother, his liability for their support remained as before and that the divorced wife, with whom the children had been left and who had maintained them, might recover of the father the moneys so expended- by her.

It has been held in a number of cases that where the statute authorized the court, awarding the eiistody of minor children in a divorce suit to the mother, to make provisions in the decree of divorce for their maintenance and to change it from time to time, and no such provision is made at the time the decree is entered, the mother may, at a subsequent term, on petition or motion, obtain an order of the court compelling the father to provide her with means for the future support of the children. Wilson v. Wilson, 45 Cal. 399; Call v. Call, 65 Me. 407; Husband v. Husband, 67 Ind. 583; Brow v. Brightman, 136 Mass. 187; King v. Miller, 10 Wash. 274; Erkenbrach v. Erkenbrach, 96 N. Y. 456. In most, if not in all, of the States where these decisions were rendered, the statutes concerning divorce authorized the court at any time after the final decree of divorce to vary or modify the order touching alimony of the wife and the maintenance of the children of the marriage.

The Missouri statute (section 2926, Revised Code 1899) authorizes the court, when it grants a decree of divorce, to make an order touching the alimony and maintenance of the wife and the custody and maintenance of the children, and further provides that the order for maintenance may, at any time after the decree on the application of either party, be changed and modified. This section seems to us to authorize the court to modify an order for maintenance of the children as well as the order for the maintenance of the wife. In Chester v. Chester, 17 Mo. App. 657, alimony in the sum of eleven thousand five hundred and twenty dollars in gross was allowed the wife, and the custody of the minor child. Eive years afterwards, she filed a motion for alimony for past expenditures in the support of tbe child. The motion was denied. This court, on appeal, affirmed the judgment.' The court treated the motion in the nature of a petition in review of the judgment in the divorce suit touching the alimony and in that view of the case held that a petition for review of a judgment for alimony was restricted by section 2185, Revised Code, 1879 (now section 2931, R. S. 1899), to a review of the order touching the alimony of the wife alone and the custody of the minor children of the marriage; in the same case it was practically- conceded that the court might have made an order for the maintenance of-the child had it been applied for. We are aware of the fact that a number of respectable authorities hold that the wife can neither sue the father for past expenditures for the maintenance of minor children awarded to her in a decree of divorce, nor procure an order after the decree has been entered for their future maintenance if none was made in the original decree. But these cases proceed upon the theory that the wife, in such circumstances, is entitled to the earnings of the children and, therefore, liable for their support. This is not the law in this State. Keller v. St. Louis, supra. Other of these cases proceed on the erroneous assumption that the duty of the father to support the child, in such circumstances, must be founded on contract expressed or implied, leaving out of view the common law which places the primary obligation on the father to support his minor children.

The motion filed by plaintiff does not specifically ask for an additional allowance for the future maintenance of the minor children, but asks for an allowance to her for her .support and to enable her to support the minor children. We do not think, under all the evidence and in view of what was allowed plaintiff as alimony in gross when the decree was entered, that her stipendiary allowance should be increased. But we are of the opinion that on a proper application made by her an allowance for the support of the minor children should be made. Our statute regulating the procedure in divorce cases seems to contemplate that the order for alimony to the wife and for maintenance of the minor children should separate the alimony allowed the wife from the allowance for maintenance of the children. The motion called for no such separation or separate allowances, in fact it is a motion for an additional allowance to the wife.

The judgment is, therefore, affirmed, with leave to plaintiff, if so advised, to file a proper application for an order for an allowance for the future maintenance of the remaining minor children.

Judges Ooode and Barclay concur in the result, but express no opinion touching any future application which may be made for the support of the minor children or for any other purpose.