Francis v. Francis

192 Mo. App. 710 | Mo. Ct. App. | 1915

Reynolds, P, J.

(after stating the facts). — Learned counsel for appellant assign four grounds for reversal of the judgment herein:

First, lack of consideration for the agreement between the parties; that an agreement between a debtor and a creditor, whereby the latter agrees to discharge the former on the payment of a less sum than the debt, is void for lack of consideration, and that the payment of the less sum operates only as a discharge pro tanto.

Second: That an acceptance of a tender of part of a liquidated indebtedness, qualified by the debtor by condition that the acceptance shall be in full satisfaction, does not discharge the balance unpaid or bar an action therefor, unless there is a dispute in good faith as to the sum due; otherwise there is no consideration for the acceptance of the lesser for the greater amount.

Third: An agreement by a creditor to take less than what is due, there being no dispute as to the amount due, in payment of his debt, is without consideration and not binding.

Fourth: An execution can only be quashed for error on the face of the judgment or execution.

It is obvious that the first three points made by counsel are sound in law; their application to this case on its facts, and on consideration of the nature of a judgment awarding alimony, is another matter.

That a judgment for alimony is so far a debt, under our system, as to bar imprisonment for its nonpayment, is settled in our State. Our court, in the case In re Kinsolving, 135 Mo. App. 631, 116 S. W. 1068, following the holding of our Supreme Court in Coughlin v. Ehlert, 39 Mo. 285, so held, holding that the husbaud could not be imprisoned as for contempt of court for its nonpayment. The question of the power of the court over a judgment for alimony after its rendition, was not there before us and not considered in any manner whatever.

In Dreyer v. Dickman, 131 Mo. App. 660, 111 S. W. 616, it is held that a judgment for permanent alimony to be paid in continuous monthly installments, was subject to the same incidents as any other judgment and that the Statute of Limitations of actions on judgments applied to such judgment, so that execution could not issue on it after the expiration of ten years. That is all that was in decision in that case. The control of the court over the judgment, even after the expiration of ten years was in no manner in issue or determined in that case.

These are the cases chiefly relied upon by learned counsel for appellant in support of their contention that this judgment awarding alimony, is so far a fixed debt, that it is beyond the control of the court to change or modify it so as to affect alimony which, up to the time of the issue of the execution, had accrued, and that nothing but full payment would discharge it, there being no controversy in good faith as to its being due and unpaid.

It is said by Mr. Bishop (vol. 2, sec. 840) in his work on Marriage, Divorce & Separation, that divorce litigation is in its nature exceptional, rendering it as to alimony or the support of a wife never at an end during the joint lives of the parties, “ and such was the law which traveled to this country from England, to become common law here. For the course in the ecclesiastical courts, followed afterwards by the Divorce Court, was, not only to receive applications to vary the alimony at times and terms of the court however remote after the granting of the divorce, but if the question of alimony was not passed upon before the divorce sentence was entered and the court adjourned, to entertain in the same cause, an original petition for it at any subsequent time or term. ’ ’

Cooke v. Cooke, 2 Phillim. 40, 1 Eng. Ec. 178, and Covell v. Covell, Law Rep. 2 P. & D. 411, are cited inter alia in support of this.

So too, our courts have, in effect, held under our statute. See Meyers v. Meyers, 91 Mo. App. 151, where the motion to change the amount of alimony was filed over four years after the award and after the decree for divorce had been rendered. See, also, Libbe v. Libbe, 166 Mo. App. 240, where the motion for alimony was made after the divorce part of the cause had ended, alimony not having even been prayed for by the wife in' her cross-bill.

Unlike the practice in England and in some of onr States, we generally reach these judgments in divorce proceedings — when it is sought to change them as to alimony and the custody of children — by motion, not by bill of review, although section 2381, Revised Statutes 1909, does provide for a review of the orders touching alimony and the custody of children.

Mr. Bishop (supra), section 1077, says that an application to increase or decrease alimony may be made either by motion or by new process.

Turning to our own statutes concerning divorce and alimony, we have these:

Section 2375, Revised Statutes 1909, provides: “When a divorce shall be adjudged the court shall make such order touching the alimony and maintenance of the wife, and the care, custody and maintenance of the children, or any of them, as, for the circumstances of the parties and the nature of the case, shall be reasonable. . . . The court on the application of either party, may make such alteration, from time to time, as to the allowance of alimony and maintenance, as may be proper,” etc.

Section 2381 provides:

“No petition for review of any judgment for divorce, rendered in any case arising under this article, shall be allowed, any law or statute to the contrary notwithstanding; but there may be a review of any order or judgment touching the alimony and maintenance of the wife, and the care, custody and maintenance of the children, or any of them, as in other cases. ’ ’

In Dorrance v. Dorrance, 257 Mo. 317, 165 S. W. 783, it is said that the first clause of this section 2381 is unconstitutional, if it is held to deprive a court of equity of power to set aside a divorce for fraud. While in Dorrance v. Dorrance, 242 Mo. 625, 148 S. W. 94, it is held that such an attack is not a “bill of review” and hence not within the prohibition of this clause of the statute.

Mr. Bishop (supra), section 847, has said:

“But an alimony decree has in most of our States only a sort of interlocutory force, is liable to be varied from time to time by the court which pronounced it, and is enforceable only on process issued from such court.”

In those jurisdictions in which actions for divorce are heard on the equity side of the court as cases in chancery or as formerly by the ecclesiastical courts of England, the right of the court to alter the order for alimony has been recognized and exercised in very many cases. Judge Johnson, speaking for the Kansas City Court of Appeals, has said, in Libbe v. Libbe, supra (l. c. 247):

“Our statutes relating to alimony and suit money are but a modern adaptation of the rules and practice of the ecclesiastical law.” .

A reference to these decisions of other courts in detail would serve no useful purpose. A leading case in Avhich the judgment Avas rendered by Dr. Lushington, in the ecclesiastical court of England, is that of De Blaquiere v. De Blaquiere, 3 Haggard’s Ecc. Rep. 322. In that case the right of the court to remit past due and unpaid alimony was exercised as an undoubted right. There both parties had long abstained from applying to the court for a change of the alimony first awarded, the husband, who had been divorced a mensa et thoro on account of his adultery, applying for a reduction of alimony allowed but largely in arrears, the wife on the other hand then applying to enforce its payment. The court held that it would not enforce the arrears nor inquire as to the sums paid by the husband for his wife’s debts incurred by reason of nonpayment of that alimony, nor would it reduce alimony on account of an express waiver of a part thereof by the wife. The decree of separation was entered in May, 1820. From that time until his application for the reduction of the amount allowed and for the greater part of Avhich he was in arrears, the husband had not filed any application. for the reduction until February, 1829. Tbe court held that it was open to tbe wife to have made the application to enforce payment of tbe allowance at any time during tbe interval and as she bad failed to do so until her husband had taken steps to have tbe amount reduced, it affirmed tbe decree for tbe amount of alimony allowed but declined to enforce payment of that part of it due prior to tbe commencing of tbe last quarter of tbe time in which tbe proceedings for its alteration bad been filed. That is to say, tbe court, long after tbe alimony bad been fixed, remitted the payment of all of it in arrears, except for tbe one year commencing with tbe quarter preceding the application to tbe court.

In Linton v. Linton, 15 Q. B. Div. 239 (Law Rep. 1884-1885), it was held that if circumstances bad changed in the pecuniary ability of tbe husband to pay alimony awarded so that what was previously a fair amount of alimony is not a fair amount now, be is at liberty to apply to tbe judge of tbe divorce court for an alteration in tbe amount of tbe alimony. It was said by Cave, J., in the lower court, that alimony, by agreement of tbe parties, was fixed by tbe court at a certain sum, payable at stated times. Tbe husband fell in arrears for tbe payment of certain installments, and tbe wife proved up tbe amount of arrears as a debt. Tbe husband appealed from tbe allowance and on its affirmance by tbe court, appealed to tbe Court of Appeals. There Sir Eiohaed Baggallay, L. J., said (1. c. 245):

“An order for tbe payment of alimony may be varied from time to time according to tbe means of tbe husband; there is, therefore, no means of putting a value upon tbe future payments for tbe purpose of a proof in bankruptcy.”

Lord Justice Bowen said (l. c. 246), that while it might be that arrears of alimony are a debt within tbe provision of tbe bankrupt law, they do not constitute a debt of law; a peculiarity of a judgment awarding alimony, distinguishing it from other judgments is, that in a sense, it is not final.

So it was held by the Supreme Court of New Jersey in Van Buskirk v. Mulock, 18 N. J. Law, 184.

In Audubon v. Shufeldt, 181 U. S. 575, it is said by Mr. Justice Gray, who delivered the opinion for the court:

“Alimony does not arise from any business transaction, but from the relation of marriage. It is not founded on contract, express or implied, but on the natural and legal duty of the husband to support the wife. The general obligation to support is made specific by the decree of the court of appropriate jurisdiction. Generally speaking, alimony may be altered by that court at any time, as the circumstances of the parties may require. The decree of a court of one State, indeed, for the present payment of a definite sum of money as alimony, is a record which is entitled to full faith and credit in another State, and may therefore be enforced by suit. [Barber v. Barber (1858), 21 How. 582; Lynde v. Lynde (1901), 181 U. S. 183.] But its obligation in that respect does not affect its nature.”

Mr. Justice Gray, in his opinion in the above case, quotes approvingly from Tolman v. Leonard, 6 App. D. C. 224 (1895), l. c. 233:

‘£ The allowance of alimony is not in the nature of an absolute debt. It is not unconditional and unchangeable. It may be changed in amount, even when in arrears, upon good cause shown to the court having jurisdiction. The fact that such a decree may be sued upon under certain circumstances, or enforced, as is the case in some jurisdictions, by either execution or attachment of the person, or both, does'not, in our opinion, change its essential character.”

Alexander v. Alexander, 13 App. D. C. 334, is also cited by Mr. Justice Gray approvingly. In that case the decree of divorce from the bonds of matrimony had been awarded in favor of the wife against the husband, adjudging alimony at the rate of $50 per month. This decree was rendered July 11, 1877. In February, 1878, the alimony being in arrears and unpaid, the wife petitioned the court for an order to compel its payment. This order was made. Various steps and proceedings followed, the court finally reducing the alimony, both that in arrears and that to accrue. From this the husband, not satisfied with the reduction, appealed. The wife subsequently filed a bill of review, setting out the facts as to the reduction of alimony in arrears and to be paid, alleging in her bill that all the orders and decrees passed in the case subsequent to the original decree of July 8, 1877, which in any way altered or affected the original decree were, so far as they reduced the alimony allowed by the original decree, null and void on the ground, as claimed, that the original decree had become an absolute finality beyond the power of the court to change in any manner except upon the petition of the complainant to increase the amount of the alimony. This bill of review was demurred to and pleas filed to it and on hearing the bill of review was dismissed. On appeal, after considering other phases of the case, the Court of Appeals of the District of Columbia, in an exhaustive opinion, in which the nature of alimony and the control of the court over it, are reviewed, held, to quote the syllabus, which we find sustained by the opinion:

“Where a decree for divorce a vinculo, at the suit of the wife, allows the wife a certain fixed monthly sum as alimony, and reserves to her the right to apply at any time for an increase, but contains no reservation to the husband for leave to apply for a reduction, the court may nevertheless at any time thereafter entertain an application on his part for a reduction, and upon a proper showing grant it.”

We are met with no such question over the omission from the decree before' us of any reservation of a right to change the decree, for as we have seen, onr statute gives that right — a right, as we shall hereafter see, ,often exercised by our courts.

The effect of our law, and so the decisions in other jurisdictions hold, and as stated by Mr. Bishop' hereinbefore quoted, is that the judgment awarding alimony is in a manner an interlocutory judgment, changeable at any time. Until changed it is enforceable as other debts, by execution, but this in no degree lessens the power of the court to change it from time to time.

In Schmidt v. Schmidt, 26 Mo. 235, an action for divorce, the decree went in favor of the wife, who was also awarded the custody of the child and allowed $150 for her support for one year, payable in quarterly installments. Said Judge Scott (l. c. 236):

“All that portion of the decree which relates to the subject of alimony, is subject to the future.control of the court.”

In Meyers v. Meyers, supra, a decree was entered granting plaintiff an absolute divorce from her husband and awarding her the custody of her minor children. It was further ordered and adjudged that defendant pay plaintiff, by way of alimony and in addition to suit money and other payments, $30 per month to be paid on the 15th day of each month “until the further order of this court. ’ ’ This decree was entered in the circuit court in July, 1896, that is to say during the June term of the circuit court of the city of St. Louis. At the October, 1900, term of that court, plaintiff filed her motion for an increase of monthly alimony on the ground that her former husband’s income and ability to pay had been increased and that plaintiff was unable to support herself and minor children on $30 per month. It was in evidence that the allowance of alimony as entered in the decree for divorce was made by the court in pursuance of an 'agreement touching that made by the parties after the court had announced that it would grant a divorce to the wife, as was also the order awarding her the custody of her five minor children. After hearing the motion for increase of allowance, the trial conrt overruled it, and the case was appealed to our court. Here, in the opinion by Judge Bland, he states (l. c. 155):

“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 is not final as to the stipendiary alimony of thirty dollars per month. Both by the judgment and by the statute (section 2026, 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.”

Referring again to this section of the statute of 1899, now section 2375, which authorized the court, on the application of either party to “make such alteration from time to time as to the allowance of alimony and maintenance as may be proper, the learned judge says (l. c. 156):

“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.”

The order of the circuit court overruling the motion was affirmed, all the members of the court concurring in that result, but two of them expressing no opinion as to the intimation thrown out by the Presiding Judge as to future applications which might be made for the support of the minor children, leave to make such amendment being granted.

“There can be no doubt that under this statute (sec. 2381, R S. 1909) the court granting the divorce retains jurisdiction for the modification of the judgment or decree touching the maintenance of the wife and the custody of the children.” [Nortoni, J., in Wald v. Wald, 168 Mo. App. 377, l. c. 383.]

“A judgment for divorce, so far as alimony and the support and custody of children is concerned, is not a closed incident, like other judgments. As to these matters it can accomplish its true end only by remaining perpetually open for variations to be made from time to time as the changed circumstances of the parties and the children may require (1 Bishop on Marriage, Divorce & Separation, sec. 822). As respects the custody of the children, a divorce suit can in its nature terminate only with their majority. [Ibid, sec. 826]. And, in addition to this, our statute gives the court power to modify the judgment as to such matters. [Sec. 2381, R. S. Mo. 1909.]” [Trimble, J., in Phipps v. Phipps, 168 Mo. App. 697, l. c. 700, 154 S. W. 825.]

To sum up the matter, our conclusion is, that a judgment for alimony, while a judgment and a fixed debt, unless and until altered, is more in the nature of an interlocutory judgment. The court that rendered it has power to alter it. So says our statute; so the English ecclesiastical, as well as the chancery courts, the courts of other States and our own courts hold. The power conferred over judgments allowing alimony is not restricted in any way in its operation. There are no words of restriction confining it to alimony to accrue. It covers the whole subject of alimony and vests the court in which it was awarded with power to control it at any time and in any manner. That being so, when these parties here entered into an agreement to commute the arrears at a fixed sum and to have the order of alimony changed so as to award alimony in gross in the sum of $1, they were doing what they had a right to do and what the court could have done for them without their consent. It required no consideration, valuable or otherwise to sustain an agreement to change or an order making the change. It lay in the discretion of the court, on consideration of the facts and circumstances' in the case, to change it.

In the case at bar we have the fact of the plaintiff here, by a solemn covenant and agreement in writing, acknowledged by her before a public official, agreeing to accept $600 in satisfaction of the accrued installments, to have the former order or judgment changed accordingly by the court, and to accept $1 in lieu of alimony in gross. The money was paid over to her by plaintiff. That he borrowed the money is not material; that would only be material if the lender was here seeking the aid of the court. There is no pretence that any fraud or imposition was practiced upon the plaintiff. She made the agreement with the aid of counsel she had chosen, and as far as it was then possible, she had carried out her part of the agreement by withdrawing the execution and releasing the garnishment. Here in point of fact was a valid executed contract, which plaintiff could not rescind. When the court enforced it, it did no more than what it had a right to do, independent of the agreement, and as we have said, simply enforced and carried out the contract that the parties had made. Under such circumstances we do not think that the case presented is one of the discharge of a fixed debt for a sum less than that debt or that it is the release of a fixed obligation or debt for a smaller amount.

Touching the final point as to quashing the execution, it is sufficient to say that the judgment upon which it purported to rest, having been annulled, the execution fell with it.

We find no reversible error in the action of the trial court and its judgment is affirmed.

Nortoni and Allen, JJ., concur.