State ex rel. Thomas v. Kelly

631 S.W.2d 685, 1982 Mo. App. LEXIS 3830
CourtMissouri Court of Appeals
DecidedMarch 16, 1982
DocketNo. 45044
StatusPublished
Cited by8 cases

This text of 631 S.W.2d 685 (State ex rel. Thomas v. Kelly) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Thomas v. Kelly, 631 S.W.2d 685, 1982 Mo. App. LEXIS 3830 (Mo. Ct. App. 1982).

Opinion

SIMON, Judge.

This matter is before us following our issuance of a preliminary writ of prohibition, which we now quash.

The record shows that Marion Thomas and Alice Thomas were husband and wife until their marriage was dissolved by respondent’s judgment of September 25, 1981 (nevertheless, we will continue to refer to them as husband and wife). In that judgment, the husband was awarded the larger share of the marital property, including the residence, since his contribution was greater and the marriage was of short duration. A portion of the marital property was set aside for the wife, however, including a car, some furniture and household appliances and the sum of $30,000. Respondent also decreed that the wife was not entitled to maintenance from the husband since he found she should be able to support herself through employment and would have her share of the marital property, including the $30,000.

In pertinent part, respondent’s findings and judgment were:

5. The Court finds that Respondent is not entitled to maintenance. The Court finds that neither is she unable to support herself through appropriate employment — she has 20 years experience in the nursing and medical insurance field and her mental problems are not of such a nature to prevent her from holding employment — nor is she lacking of any other property as she will receive a portion of the marital property. The Court notes Respondent’s statement that she desires to attend cosmetology school for six months so as to be qualified to find employment in that field.
6. Respondent has requested that Petitioner be ordered to pay her reasonable attorney’s fees. Having considered all relevant factors including the parties’ financial resources, the parties’ contribution to the acquisition of the marital property, the lack of any greater fault or misconduct on Petitioner’s part as opposed to Respondent’s, and the award of a substantial sum of cash to Respondent as her share of marital property, the Court finds that Respondent’s request for attorney’s fees from Petitioner should be denied.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the marriage between Marion L. Thomas and Alice L. Thomas be and is hereby dissolved.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the marital property of the parties shall be divided as follows:
The Petitioner shall receive the residence and real estate located at 318 Laura in Farmington, Missouri, an Airstream trailer, a 1950 Chevrolet automobile; a 1978 El Camino automobile; a cheeking account at Mercantile Bank of Farming-ton listed in Petitioner’s name; all furniture and household furnishings located in the residence above listed except those items specifically awarded to Respondent; a Certificate of Deposit at Mercantile Bank of Farmington in the principal sum of $10,000.00 plus accrued interest; the remaining principal amount and all accrued interest in a Certificate of Deposit at Mercantile Bank of Farmington in the sum of $37,000.00 after Respondent’s share of said certificate in the sum of $30,000.00 is removed.
Respondent shall receive a 1978 Buick Skylark automobile, a bedroom set consisting of brass bed and mattress, chest and dresser; a china cabinet; coffee table; couch and lamp table, a rocker; and color TV; the sum of $30,000.00 to be taken from a certificate of deposit at Mercantile Bank of Farmington, which certificate has a principal sum of $37,-000.00.
[687]*687IT IS FURTHER ORDERED, ADJUDGED AND DECREED that neither party shall be awarded maintenance, and that Respondent’s request for attorney’s fees and deposition costs be denied.

On November 3,1981, the husband filed a notice of appeal from respondent’s judgment, challenging the award of $30,000 marital property to the wife. He posted a supersedeas bond so that he was not required to pay $30,000 to the wife, pending the appeal. The wife had already surrendered the marital residence to the husband pursuant to the decree. On November 4, 1981 the wife filed a motion in respondent’s court requesting an allowance for attorney’s fees and costs on appeal and a “reinstatement” of maintenance. The wife had received temporary maintenance of $125 per week pending the dissolution of the marriage. The matter of the attorney’s fees and costs was postponed by stipulation of the parties and respondent heard the motion for reinstatement of maintenance on November 9, 1981. The wife presented evidence to show her financial situation was grim and she required an allowance for her support. The husband argued that respondent did not have jurisdiction to order maintenance pending appeal. Respondent indicated his intention to order the husband to pay the wife a weekly allowance of maintenance pending appeal, with the understanding that husband could offset such maintenance payments against the $30,000 awarded the wife if that property division were affirmed on appeal; but respondent delayed entering his order, allowing husband to seek a writ of prohibition. The husband filed his petition with this court on November 12, 1981 and in due course we issued our preliminary writ. On the same day, November 12, 1981, the wife filed her notice of appeal from the judgment of September 25, 1981 contending respondent erred in not awarding her maintenance.

Initially, we note that the respondent does not have jurisdiction to modify or amend his judgment of September 25, 1981 in response to the wife’s motion filed on November 4, 1981 seeking maintenance on appeal. Rule 75.01. Section 452.370.1 RSMo. (1978) does allow modification of maintenance by modifying the decree granting maintenance but maintenance may only be modified as to installments accruing subsequent to the motion to modify and upon a proper showing of changed circumstances. There must have been, however, an award of maintenance in the initial decree, or at least a clear expression that the court retained jurisdiction in a case where the facts would permit such a retention, before the decree can be modified. Givens v. Givens, 599 S.W.2d 204 (Mo.App.1980). Here there was no maintenance and no retention of jurisdiction in the judgment. The temporary maintenance pendente lite which the wife received was pursuant to the authority of an order which ceased to exist when the judgment was entered. Creasey v. Creasey, 175 Mo.App. 237, 157 S.W. 862, 863 (1913).

Alimony or maintenance pending appeal does not involve a modification of the decree. It is treated as a separate matter raised in an independent proceeding in the circuit court, not the court of appeals. Section 452.070 (1969)1 authorized alimony [688]*688pending the suit for divorce. A suit for divorce was deemed pending within the meaning of the statute even though an appeal had been taken from the trial court’s judgment. Therefore, pursuant to § 452.-070 (1969), alimony was granted to the wife upon her showing that she was in need of funds for her sustenance and to present her case on appeal. State ex rel. Kranke v. Calhoun, 232 S.W. 1038 (Mo.banc 1921); State ex rel. Clarkson v. The St. Louis Court of Appeals, 88 Mo. 135 (1885); Noll v. Noli, 286 S.W.2d 58, 61-62 (Mo.App.1956). The issue here is whether the circuit court, after the repeal of § 452.070 (1969), has jurisdiction to order maintenance pending appeal.

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Bluebook (online)
631 S.W.2d 685, 1982 Mo. App. LEXIS 3830, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-thomas-v-kelly-moctapp-1982.