Thomas v. Thomas

Full title: THOMAS v. THOMAS

Court: Kansas City Court of Appeals, Missouri

Date published: Apr 2, 1951

238 S.W.2d 454 (Mo. Ct. App. 1951)

Opinion

No. 21508.

April 2, 1951.

APPEAL FROM THE CIRCUIT COURT, JACKSON COUNTY, JOE W. McQUEEN, J.

Claude L. Schenck, Kansas City, for appellant.

Robert L. Holder, Hammond C. Woods, Kansas City, for respondent.

CAVE, Judge.

This is an appeal from an order modifying a divorce decree by eliminating therefrom the allowance of $7 per week for the support of a child.

Plaintiff's motion alleged that on December 7, 1945, the defendant was granted a divorce from the plaintiff on her crossbill and was allowed $7 per week for the support of their son, Robert, who was then 15 years of age; that at the time of the filing of the motion for modification Robert was 19 years of age and "for all purposes and in all respects is a mature, strong man, and is employed at a substantial salary. That the above plaintiff is unemployed and is unable to make any further payments for the support of Robert Thomas, his son, and that said son does not want any further payments made for his support."

Defendant countered with a motion to modify the decree, praying the court to increase the weekly allowance from $7 to $25 for the reason that she is required to spend $25 weekly in support of their son.

After a hearing, the court sustained plaintiff's motion and entered an order modifying the original decree by the elimination of the allowance of $7 per week for the support of Robert as of February 23, 1950, and overruled defendant's motion to increase the allowance.

The defendant appealed, and urges that the court erred in sustaining plaintiff's motion because it is the primary duty of a father to furnish support for a child until said child attains his majority, "absent a change of condition." That is a correct statement of a general principle of law, but it does not mean that under all conditions and circumstances a court must require the father to contribute to the support of a son merely because he is under 21 years of age.

The transcript presents the evidence in a very brief narrative manner, and we must do likewise. In this kind of case we would prefer to have all the testimony before us.

The evidence is to the effect that Robert was born on May 5, 1931; the order of modification was made on March 6, 1950. The father testified that his son was steadily employed and was "earning more money per week than he (father) was earning"; that he (father) had been working for Armour Motors but had quit or lost that employment after his wages had been garnished by the defendant; that he was without funds with which to comply with the order of the court requiring him to contribute $7 per week for the support of his son; that he had been unable to do so, and was in default for such payments from May, 1949, until the date of the hearing; that he owned no real estate; that he recently purchased a new Ford track which was mortgaged for approximately $900; and that he had no income other than what he made from hauling with said truck. He gave no estimate of his earnings. On cross-examination he testified that he had heard his son was attending night school but was unable to state positively whether his son was employed at that particular time.

The son testified that during the summer he had secured employment, earning $40 a week; that he was discharged from such employment after his father contacted the employer and tried to collect his pay check; that he was attending night school at the University of Kansas City, and intended to enter a medical school in the fall of 1950; that his father told him that he (father) was the owner of a residence located at 2527 Walrond, Kansas City; that the title to said property was purposely taken in the name of Norvel Thomas (plaintiff's brother) to prevent his former wife, defendant, from collecting child support out of the property; that he had received money from his father with directions to pay the same to the contract seller of the property on Walrond; that most of the receipts for said money were made to both his father and Norvel Thomas; that at the time of the hearing he had no income and that his support was wholly derived from his mother; that his father always seemed to have adequate funds.

The defendant testified that she was employed at a laundry, earning $27, a week, and was supporting Robert; that he was attending night school and that she intended to enroll him in a school of medicine in the fall of 1950; that plaintiff was engaged in the drayage business with his Ford truck, but she was unable to state the amount of his income; that Robert had not been working regularly but that when he did work he helped pay her expenses; that when Robert secured employment his father would do something to cause him to lose the position; that Robert lived with her and most of the time she fed and clothed him at a cost of approximately $15 to $20 a week; that her husband owned the real estate at No. 2527 Walrond.

Such a proceeding as this is of an equitable nature falling within the rule that due deference is given to the finding of the trial court and its judgment will not generally be reversed, if supported by substantial competent evidence. Mahan v. Mahan, 239 Mo.App. 317, 192 S.W.2d 626, 628. The chancellor heard the oral testimony and observed the demeanor of the parties while testifying and is in a much better position to evaluate their testimony than this court is. He could have found, and no doubt did find, that Robert was employed much of the time and was making more money than his father, and that the mother was no longer in need of the $7 a week for the support of the son; that the father no longer had regular employment and was unable to continue to pay said weekly allowance. We defer to the chancellor's finding on the conflicting testimony of the parties.

Defendant cites and relies on Swenson v. Swenson, Mo.App., 227 S.W.2d 103, and Kelly v. Kelly, 329 Mo. 992, 47 S.W.2d 762, 81 A.L.R. 875. These cases discuss the question of the right of the divorced wife to recover from her husband necessary expenditures for the support of minor children where the divorce decree made no such provision. All the cases hold that where a divorce decree is silent on the question of support for the children, the liability of the father to support his minor children remains in full common-law vigor, even though their mother is awarded their custody. But it is also true that Sec. 1519, R.S. 1939, R.S. 1949, § 452.070, provides a method for determining in advance the extent of the husband's common law obligation for the support of his children. Gardine v. Cottey, 360 Mo. 681, 230 S.W.2d 731, 749; Kelly v. Kelly, supra. Such provision was made in this case at the time of the granting of the divorce, but at the time of the hearing on the motion to modify the chancellor could have found, and we assume he did so find, that the son was gainfully employed and that his mother was no longer required to support him. If that situation existed, there was a changed condition subsequent to the granting of the divorce and the court would have authority to modify the original judgment pertaining to child support in the light of present conditions. Messmer v. Messmer, Mo.App., 222 S.W.2d 521.

The defendant also urges that the court erred in dismissing her motion to increase the amount of weekly allowance. What we have said disposes of this assignment.

The next assignment is that the court erred in refusing to allow defendant attorney fees. The only request for the allowance of attorney fees for the hearing in the trial court was made in defendant's motion for modification of the original decree. Apparently no request was made for such allowance prior to the hearing on the motion. The court, after hearing all the evidence, overruled the motion to modify, which included the request for attorney fees. After defendant perfected her appeal a motion was filed for suit money and attorney fees pending the appeal and the court sustained this motion, allowing defendant $60 "suit money" and $100 "attorney fees," which allowances were duly paid by the plaintiff. The court did not err in the matter of allowing attorney fees. However defendant complains that the court erred in not also making an allowance for the support of Robert during the pendency of the appeal. We think the evidence of the financial condition of these parties justified the court in denying support for Robert pending the appeal.

Because of the very limited statement of the evidence in narrative form in the transcript, we are unwilling to say the trial court erred in any particular.

The judgment is affirmed.

All concur.