Lukowski v. Lukowski

108 Mo. App. 204 | Mo. Ct. App. | 1904

BLAND, P. J.

(after stating the facts). — In view of all the evidence, the allowance is a very reasonable one, if the plaintiff is entitled to anything at all. The contention of defendant is that the plaintiff’s demand is one which can not be legally allowed against the estate, for the reason that the decree of divorce, so long as it stands, furnishes the measure of the rights and obligations of the parties to that decree. That if the decree was inadequate or failed to furnish support to the minor children, plaintiff’s remedy, and only remedy, was to apply to the divorce court for a modification of the decree and by proper motion ask an allowance for the maintenance of the minor children. Our statute on divorce (sec. 2926, Revised Statutes 1899) makes it the duty of the court granting the decree of divorce to “make such order touching the alimony and the maintenance of. the wife, and the care, custody and maintenance of the children as shall be reasonable.” Section 2932 provides that there may be a review of any order or judgment touching the alimony and maintenance of the wife and the care and custody and maintenance of the children. The decree of divorce, while, it shows that the children were in the mind of the court at the time the decree was entered, fails to show that any order or judgment was made or.rendered for their future maintenance. Defendant, however, contends that their maintenance was provided for in the allowance, of the two thousand dollars as alimony in gross to the wife. The decree does not read that way. Alimony is one thing and an allowance for the maintenance of the minor children is another. Alimony is for the maintenance and support of the divorced wife. A separate order is required to provide for the maintenance of the minor children. The statute contemplates a separate allowance for each and it would he a bold assumption to hold that the divorce court intended that out of the two thousand dollars, allowed the mother as alimony, she should maintain her minor children that were awarded to her custody. The divorce court omitted to make any order for the maintenance of the minor children. It entered no judgment in their behalf and there is no order or judgment providing for their maintenance that can be reviewed by the divorce court, as provided for by section 2932, supra. There is, therefore, nothing in the decree of divorce to which Lukowski could have appealed in his lifetime to relieve him of his primary duty to support his children and nothing to which his administrator can now appeal or set up as a bar to the allowance of the plaintiff’s claim, as the award of the custody of the minor children to the mother did not relieve Lukowski of the primary duty to maintain his children. Lusk v. Lusk, 28 Mo. App. 91; Cox v. Boyce, 152 Mo. 596, 54 S. W. 467; Chester v. Chester, 17 Mo. App. 1. c. 659. It is the law here and elsewhere, that the wife, after divorce may maintain an action against her former husband for money expended by her to maintain his minor children after the divorce, where the decree of •divorce failed to provide for their maintenance. Rankin v. Rankin, 83 Mo. App. 335; McCloskey v. McCloskey, 93 Mo. App. 398, 67 S. W. 669; Gibson v. Gibson, 40 L. R. A. 587; Re Estate of August Zilley, 40 L. R. A. 579. This being so, she may, of course, have her demand for such allowance probated against her former husband’s estate after his death.

Discovering no reversible error in the record, the judgment is affirmed.

All concur.