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Robinson v. Robinson.
motion to modify the decree, sustained same and allowed respondent $500 per year for the maintenance and education of the child. From this ruling the case was appealed to the Springfield Court of Appeals, and from the judgment of affirmance rendered therein (168 Mo. App. 639) the case was formally certified to this court on the ground that the decision rendered in said Court of Appeals was in conflict with prior rulings of the St. Louis Court of Appeals (Lukowski v. Lukowski, 108 Mo. App. 204; Seely v. Seely, 116 Mo. App. 362).
The errors assigned are (1) that the court was without jurisdiction in making the order modifying the decree; (2) that the defendant should have been awarded a change of venue; and (3) that the amount allowed for maintenance was excessive.
I. The matter at issue involves the construction of sections 2375 and 2381, Revised Statutes 1909. Such portions of said sections as are pertinent to the matter under review are as follows:
"Sec. 2375. 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, from 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."
"Sec. 2381. . . There may be a review of any order or judgment touching the alimony or maintenance of the wife, or the care, custody and maintenance of the children."
Respondent contends that under these sections the judgment of divorce, which contains no reference
Robinson v. Robinson.
to the child other than to award its custody to the mother, may, upon motion subsequent to the term at which the judgment was rendered and after its satisfaction, be so modified as to require the father to provide for the child's support; and so the trial court held.
The appellant contends that upon the facts stated no such modification can be made. That if section 2375 stood alone it would authorize the court, only when the divorce was adjudged, to make such an order for the child's care, custody and maintenance as from the circumstances of the parties and the nature of the case shall be reasonable. That if the sections are read together the court is empowered to review the judgment touching the care, custody and maintenance of the child either at the time the divorce is granted or during the same term or thereafter, under the limitation of the statute, if the court has, by the terms of the judgment, retained jurisdiction of the child, and not otherwise.
Absolute divorce, as recognized by our law, and the consequent power of courts granting same to make provision for the care, custody and maintenance of minor children after marriages are dissolved, is of purely statutory creation. This, however, does not necessitate a strict construction of this class of statutes, but they should be so construed in view of the subject of legislation as to fully effectuate the purpose of their enactment (In re Morgan, 117 Mo. 1. c. 254), due consideration being given of course to the rule in regard to the finality of judgments and the lack of the court's authority over same after the term when they were rendered.
In the instant case, as stated, no reference to the child appears in the decree other than to award its custody to the mother. A cursory reading of the stat ute would lead to the conclusion, under the state of
Robinson v. Robinson.
facts here present, that the contention of the appellant should be sustained.
This rule of law must be borne in mind, however, that regardless of divorce proceedings, when both parents are living the primary liability for the support of a minor child is, in this State, as it was at common law, upon the father. [Viertel v. Viertel, 212 Mo. l. c. 576; Keller v. St. Louis, 152 Mo. 1. c. 599.] Cases illustrating the enforcement of this liability are far more frequent as a sequel to divorce proceedings than as independent actions. The reason is obvious. The severance of the marriage relation disrupts the family, renders the support and rearing of minor children precarious, and thus militates, in the absence of remedial legislation, against the public welfare. Hence the enactment of statutes of the character here under review, which simplify procedure and obviate the expense and delay of independent actions. No difficulty is encountered in applying the statute where it is sought to ascertain and determine the limit of the father's liability for support of a minor at the time the divorce is adjudged or thereafter during the term of its rendition. The exercise of the power at the time of the adjudication, being clearly and explicitly defined by the statute, admits of no controversy, and the right of the court to modify this, as any other judgment, during the term constitutes an inherent exercise of judicial power. [Kansas City v. Woerishoeffer, 249 Mo. 1.] But a question as to the father's liability not so easy of solution is presented when we are confronted with the facts that the decree makes no reference to the child other than to award its custody to the mother and that years have flown since the term closed at which the decree was rendered.
Leaving out of consideration for the nonce the power given the trial court under section 2381, supra,
Robinson v. Robinson.
and weighing the facts in the balance of reason, it is evident that at the time of the rendition of this decree it was not contemplated or expected that the father should provide for the support of the child. While there is no evidence of collusion, it does appear that the award to the wife of $7000 cash as alimony in gross and a deed to a half of a farm which had cost the husband $25,000 was, at the time of the decree, deemed by the wife eminently satisfactory. This allowance, in view of the husband's pecuniary condition, was more than just, it was liberal. As a further circumstance showing that the support of the child was intended by the parties to be included in and made a part of the award to the mother, it appears that she rested content, raising no question as to a modification of the decree until five years after its rendition. During all of this time having the custody of the child she provided for its maintenance out of her ample allowance without protest. Much as these facts may appeal to one's sense of substantial justice as determinative of the question of the child's support, and regardless of the purpose and intention. of the mother at the time of the rendition of the decree, the law regards the rights of the child as paramount to that of the parents (Tatum v. Davis, 144 Mo. App. 1. c. 129), and, mindful of the primary liability of the father, we are to determine from section 2381, as supplemental to section 2375, whether the trial court possessed the power to make the modification of which the appellant complains. That the terms of the decree did not authorize an alteration therein providing for maintenance as is provided in section 2375 alone, is, we think, evident. Alteration can only be made in something then in existence; but when we consider section 2381 we find it provides, so far as the child is concerned, that "there may be a review of any order or judgment touching
Robinson v. Robinson.
the care, custody and maintenance of the children." While it is true that there is no reference in the decree to maintenance, there is a finding therein as to custody sufficient to enable the court to retain jurisdiction of the case until the child reaches its majority. [Phipps v. Phipps, 168 Mo. App. 1. c. 702; Wald v. Wald, 168 Mo. 1. c. 384.] Custody in the statute is conjoined with maintenance, and it is no strained construction to hold, in view of the purpose of the law and the paramount rights of the child, that jurisdiction as to custody gives jurisdiction as to maintenance. This being true, we hold that the court was authorized, notwithstanding the silence of the decree and the lapse of the term, to make the modification of which appellant complains. The decrees in Lukowski v. Lukowski, 108 Mo. App. 1. c. 207, and Seely v. Seely, 116 Mo. App. 1. c. 362, provide for the custody of the children, and in so far as these cases are contrary to the ruling herein regarding the trial court's jurisdiction they are overruled.
II. There is no merit in the contention that error was committed in refusing the appellant a change of venue. The motion for the modification of Change the decree was but a continuation of the original action, and hence was not "a suit" within the meaning of the statute authorizing changes of venue. [Sec. 1927, R. S. 1909: Cole v. Cole, 89 Mo. App. 228.]
III. In view of the means, in a money sense, of the appellant, we are of the opinion that the allowance for the child's support was excessive, and we so hold.
A recent independent action was instituted by the mother of the child here in question, to recover from the father the expenses incurred by her in the