Marx v. Marx

89 Mo. App. 455 | Mo. Ct. App. | 1901

BOND, J.

It must be admitted that the petition in this case embraces a novel conjunction of causes of action. The first count seeks relief predicated upon a dissolution, and the second count seeks relief upon a continuance of the marriage between the parties. If the plaintiff should be divorced from, the defendant, she would thereafter not be his wife. If, on, the other hand, the statute obligating him to maintain her as his wife is invoked, she could have its benefits only while the relation of wife continued. It is obvious, therefore, that the two theories of relief presented in plaintiff’s petition are diametrically opposed to each other. It is not at all likely that the learned circuit judge will permit the case to go to trial upon both of the counts set forth in the petition, but will compel the plaintiff to elect upon which of the two she will proceed. In disposing of the questions presented, we will assume that his interlocutory orders in the premises relate solely to the suit for divorce. The briefs of the learned counsel have not furnished us with a sufficient statement of the voluminous record presented on this appeal to relieve us from the task of exploring it in order to discover that portion material to a determination of the questions of temporary alimony and suit money. We are able to gather by this investigation that the defendant has mortgaged his home for the benefit of his wife in the sum of fifteen thousand dollars; that he is far from being a man of wealth; that while he owns considerable stock (par value $126,-200) in a mercantile business; that its value depends upon the vicissitudes of that calling, as well as upon contribution of his personal services and management; that it is heavily incumbered (about-$81,950) ; that his salary is- six thousand dollars a year, which combined with the dividend (in 1899 only two per cent) on his stock and the rent ($900) of a Pine street property (mortgaged for $5,000), constitute his entire sources of income; that his interest charges, life insurance and household expenses exceed’ seven thousand dollars, which amount deducted from the aggregate of his income would leave a sum proper to be considered as a true basis for a just allowance m the way of alimony and suit money; that prior to the institution of this proceeding he made provision for his wife whereby she received two hundred and twenty-five dollars per month, based upon a forbearance of interest on the fifteen thousand dollar note secured by a deed of trust. Six per cent interest on the note in question would yield nine hundred dollars per year or about seventy-five dollars per month. If plaintiff collects interest in the future on this note, we are satisfied that an additional allowance of one hundred and -fifty dollars per month is all the defendant should be required to pay. We think, also, the orders for suit money should be revised and modified under the peculiar pleadings and facts in this record. The action between the parties, unless complicated by the unusual joinder of the relief prayed for in the second count, is an extremely simple one and based upon the single allegation of desertion. We have no doubt the learned circuit judge, from his experience in such matters, will be able to determine what would be a just compensation to plaintiff for the expense incurred by her in procuring competent attorneys. The decree appealed from is, therefore, reversed and the proceeding remanded to be disposed of in conformity with the view's herein expressed.

All concur.