Cole v. Cole

91 S.W. 457, 115 Mo. App. 466, 1905 Mo. App. LEXIS 430

• Court: Missouri Court of Appeals
• Decided: November 14, 1905
• Status: Published

Opinion

BLAND, P. J.

— At the June term., 1905, of the St. Louis Circuit Court, plaintiff in error, in a suit brought by him for divorce against his then wife, Mamie Cole, obtained a decree divorcing him from his said wife. The wife was awarded the custody of the two minor children of the parties, Mildred and Florence Cole, until the further order of the court, and plaintiff in error was ordered to pay the defendant in error the sum of fifteen dollars per month as maintenance and the costs of the suit, and execution was awarded to enforce the judgment. Plaintiff sued out a writ of. error returnable to this, court. His contention is that the court erred in requiring him to pay fifteen dollars per month to defendant in error as maintenance.

1. No award of alimony or maintenance to the wife is permissible in a suit for divorce where the husband is found to be the innocent and injured party and where the decree of divorce is rendered in his favor. [McIntire v. McIntire, 80 Mo.470;DcHoog v. DcHoog, 65 Mo. App. 246; Motley v. Motley, 93 Mo. App. 473, 67 S. W. 741.] But an amended return to the writ of error has been filed by which it appears that after the writ had been issued and a return made thereon, the trial court, on the motion of defendant in error, by a nunc pro tuno order corrected its judgment in respect to the alimony. As corrected it noAV shows that the award of fifteen dollars per month to defendant in error was for the maintenance of the minor children, whose custody and care was adjudged to her. Express authority to make this order is conferred upon the trial court by section 2926, Revised Statutes 1899. The correction of the judgment cures the error complained of, therefore, the judgment is affirmed.

All concur.