HELEN G. MAYES, NOW HELEN G. ZORN, Appellant, v. OSCAR L. MAYES
Supreme Court of Missouri, Division Two
May 3, 1938
116 S. W. (2d) 1
“The COURT: Overruled. (To which action and ruling of the court the defendant then and there duly excepted at the time and still excepts.)
“The COURT: You may answer. . . . A. I consider the condition he had certainly could be attributed to the injury that he sustained.”
We are of the opinion that the trial court did not err in its ruling. In this case there was no dispute that plaintiff was injured as the result of the wreck. There was substantial evidence, aside from the evidence of the medical experts, that plaintiff‘s injuries were the result of the accident. The opinion of the doctor, that the condition of plaintiff could be attributed to the injuries sustained, was legitimate evidence. It will be noted that the doctor did not testify that plaintiff‘s injuries were caused by the defendant‘s negligence. The doctor stated that plaintiff‘s condition could have been the result of the injuries sustained. That these injuries were sustained in the wreck was proven by other evidence. This court ruled upon this point in Kimmie v. Terminal Railroad Assn. of St. Louis, 334 Mo. 596, 66 S. W. (2d) 561, l. c. 565 (9-11), where this court said:
“We do not hold, however, as defendant contends, that it is improper to ask an expert witness if something might, could, or would produce a certain result. An expert‘s view of possibility or probability is often helpful and proper. [22 C. J. 623, secs. 713, 714; 11 R. C. L. 582, sec. 12, p. 633, sec. 52; 4 Wigmore on Evidence, 198, sec. 1976.] Where there are other facts which tend to show an accident caused a certain condition, the assurance of an expert that it is scientifically possible is of some aid to the jury in determining what are reasonable inferences to be drawn from such facts.”
That language and rule is applicable to the situation here. The judgment is affirmed. Cooley and Bohling, CC., concur.
PER CURIAM:—The foregoing opinion by WESTHUES C., is adopted as the opinion of the court. All the judges concur.
Sherman & Sherman for respondent.
Prior to May 7, 1920, respondent and appellant were husband and wife and had an infant child, Howard, aged about three years when the parents were divorced. On said May 7, 1920, appellant was, by the Circuit Court of Buchanan County, granted a divorce from respondent with custody of said infant child. There was personal service of process on defendant in that case (respondent here). The petition in the divorce case, after alleging the marriage, the birth of the child, and stating the grounds of divorce relied on, alleged that the defendant was an able-bodied man, capable of earning large sums of money and that she, plaintiff, was without means of support, and, after asking for a divorce, prayed:
“That she may have the care and custody of her said infant child, and that the court will adjudge to her out of the property of said defendant such support and maintenance and for such time as the nature of the case and the condition of the parties named require; and that the court will make such further orders and judgments from time to time touching the premises as to the court shall seem meet and just.”
The decree in the divorce suit found the issues for the plaintiff, awarded her a divorce and custody of the child and adjudged “that for alimony and support of said minor child, plaintiff be allowed the sum of twenty-five dollars per month, the first payments to be
It appears that defendant left this State, either before or immediately after the granting of the divorce, without having made any payments to plaintiff under the decree, and remained outside the State until after the issuance of the execution herein.
Appellant, plaintiff in the divorce suit, never revived or took steps to revive the judgment for alimony and maintenance.
About the last of December, 1935, respondent, defendant in the divorce suit, became seized by inheritance from his father of certain property in Buchanan County. On June 25, 1936, appellant sued out the execution herein involved under said judgment of May 7, 1920, in the divorce suit. The execution recited that the plaintiff had recovered a judgment for $4,400 “for child support and attorney‘s fees” and $1.74 costs and commanded levy for “said debt and costs.” Proceedings followed which it is unnecessary to detail. Eventually respondent filed a motion to quash the execution on the ground that more than ten years had elapsed since the rendition of the judgment under which the execution was issued and there had been no revival of the judgment. The motion was sustained and this appeal followed. Such further facts as may be necessary will be stated in the course of the opinion.
As said by the Court of Appeals the question involved requires consideration of
“Every judgment, order or decree of any court of record of the United States, or of this or any other state, territory or country, shall be presumed to be paid and satisfied after the expiration of ten years from the date of the original rendition thereof, or if the same has been revived upon personal service duly had upon the defendant or defendants therein, then after ten years from and after such revival, or in case a payment has been made on such judgment, order or decree, and duly entered upon the record thereof, after the expiration of ten years from the last payment so made, and after the expiration of ten years from the date of the original rendition or revival upon personal service, or from the date of the last payment, such judgment shall be conclusively presumed to be paid, and no execution, order or process shall issue thereon, nor shall any suit be brought, had or maintained thereon for any purpose whatever.”
But we think other statutory provisions and the previous rulings of our courts of last resort must also be considered.
It has several times been held in this State that a judgment for alimony, whether in gross or payable in periodical installments, is subject to the same incidents as other judgments in actions at law and becomes dormant ten years after rendition unless kept alive by payments within such period or by revival. See the following:—Hauck v. Hauck, 198 Mo. App. 381, 200 S. W. 679; Dreyer v. Dickman, 131 Mo. App. 660, 111 S. W. 616; Eubank v. Eubank (Mo. App.), 29 S. W. (2d) 212; Nelson v. Nelson (en banc), 282 Mo. 412, 221 S. W. 1066. See, also, State ex rel. Meyer v. Buford, supra.
Most of the above cases involved alimony to the divorced wife, and the majority opinion of the Court of Appeals, without deciding whether or not they correctly apply the statutory provisions relative to judgments and executions in such situation, held in this case that such construction and application of those statutes should not be made where the judgment or award was for the support of a minor child whose custody was awarded to the mother in the divorce suit. The Hauck case, however, as is conceded, is directly in point here. In that case the wife, in a divorce action, obtained judgment of divorce, was awarded custody of the minor child of the marriage and a monthly allowance for support of the child. It was held that no execution could issue on the judgment after ten years from its rendition. Can the distinction indicated by the Court of Appeals’ decision be properly made?
The statute,
Said section further provides that the court may from time to time make such alteration as to the allowance of “alimony and maintenance, as may be proper.” The court is also authorized to allow the wife alimony pendente lite.
It is contended that as to support of minor children, the judgment is a continuing judgment; that the duty of supporting the children rests primarily on the father, and that the divorce court retains jurisdiction during the minority of the children to modify or alter the original decree as to their custody and maintenance. Arguing from these premises appellant contends that a judgment rendered in favor of the wife for support of a minor child, can never become “dormant” during the minority of the child, and that execution may issue thereon even after ten years from date of rendition of the judgment.
That the duty to provide support and maintenance for his minor children rests primarily upon the father may be conceded; also that the court which granted the divorce retains jurisdiction until the majority of the child or children to modify or alter the decree as to custody and as to future support and maintenance is well established. But those principles do not seem to reach the exact question involved in this case. Here we have not a proceeding to modify the original decree as to future support of the minor child but an attempt to collect, by execution, money which has been expended by the divorced wife for support of the child and which, therefore, the father owes her, since it was primarily his duty to supply such support. If collected that money goes to her, not to the child, who has already had the past support. If there has been no allowance made in the divorce suit for support of the child the mother, having had custody of the child and having furnished him necessary support and maintenance, could recover from the father the reasonable value thereof in a common-law action. [See Kelly v. Kelly, 329 Mo. 992, 47 S. W. (2d) 762.] In such event the recovery, of course, would go to her. Whether or not, under the principle announced in the Kelly case, the wife could so recover in a common-law action for past support where there had been a monthly amount fixed in the divorce decree, the amount of recovery, if any, to be affected, perhaps, by the amount so fixed, we need not
Now while, as we have seen, the court may from time to time make alterations in the decree as to the allowance for maintenance of the minor children so may it do as to alimony payable periodically—“from year to year,” as it is sometimes expressed. If the wife is plaintiff the court may order the defendant to give security for such “alimony and maintenance” and upon his failure or default therein may award execution. If the plaintiff wife has failed to avail herself of the statutory provision as to security it would seem she obtains a judgment collectible on execution, as judgments in other actions at law. [See Nelson v. Nelson, supra.] As we have pointed out such judgment, so far as concerns alimony to the wife, is subject to the incidents of money judgments in other actions at law, though the alimony be payable periodically, and becomes dormant ten years after rendition unless kept alive by revival or by payments. [Nelson v. Nelson, supra, and cases cited.] In this respect—the manner of collecting a judgment of this sort—the statute seems to make no distinction between an allowance of alimony “from year to year” to the wife and a judgment or allowance to the wife for support of minor children, and we do not feel justified in writing into the statute something the Legislature did not write there.
We have not overlooked the fact, urged by respondent, that even if a distinction could properly be made in the matter of collection by execution as between alimony awarded the wife and an award to her for support of the child, the judgment in this case does not specify how much of the award of $25 per month was for the wife and how much for support of the child. Also the execution includes the allowance in gross made in the original decree for plaintiff‘s attorney fees. These circumstances might afford difficulty in the enforcement of the execution, were we to hold that the execution is good as to that part of the judgment intended for maintenance of the child but not good, under our prior decisions, as to the wife‘s alimony and attorney fees. Respondent pertinently asks, how much of the total amount of the execution was for support of the child and how much for alimony?—a question impossible to answer from the record. True, the execution says $4400 for “child support and attorney‘s fees” plus $1.74 costs. The execution must be based upon the judgment, which does not specify what portion of the $25 per month was for alimony and what for child support. But we shall not borrow trouble by attempting to solve the problem thus presented. If the judgment in question be treated as being all for “child support,” the execution being with the purpose and effect of collecting for plaintiff money which she had previously expended
Appellant contends that even though, absent payments on the judgments, execution would be barred after ten years from rendition of the judgment, it is not so barred in this case because of payments claimed to have been made. This contention requires a further statement of facts.
Plaintiff testified in the proceedings relative to the execution in substance that:
Defendant left Missouri after the divorce was granted. She located him in Los Angeles, California, in 1926, and asked him to comply with the order of court in the divorce case concerning the support of the child. He did nothing toward compliance. After a time—she did not say how long—she brought some sort of suit or action in what she referred to as the “Failure to Provide Court” in Los Angeles. The record does not disclose the character or jurisdiction of said court nor the form of action brought, but evidently the action was penal in its nature. Plaintiff testified that defendant was sentenced to “two years on the road gang.” She further testified:
“Q. What was the alternative? A. They kept him there around six months and I was receiving $16.00 a month, and then they let him out on probation and he was to pay $5.00 a week, and he paid that as long as he was on probation.
“Q. What was the total amount that you received with the assistance of the Probation Court there in Los Angeles? A. Exactly $595.00.
“Q. Then what became of him? A. I took him back into court and they told him that just because the probation was over was not any reason for him to stop paying, so he paid for a while, and then stopped and he wanted the boy and I let him take the boy, and he finally told me he couldn‘t keep the boy any longer, and that I would have to take him back, which I did, and then I found him working in Los Angeles and I took him into the Failure to Provide Court again, and he left Los Angeles.”
She said defendant “jumped the court and left;” that she received no further payments and did not know defendant‘s whereabouts, that said payments referred to by her were made from 1929 to 1932.
If a payment or payments have been made on the “judgment, order or decree”
PER CURIAM:—The foregoing opinion by COOLEY, C., is adopted as the opinion of the court. All the judges concur.
COOLEY, C.