Opinion
December 20, 1951.
1. — Divorce. In divorce action by wife against husband, upon counterclaim of husband for accounting, evidence sustained finding that husband, who prior to marriage had interest in farm worth $4,000, had no property when he left his wife, who owned all property previously belonging to husband.
2. — Estoppel. Though husband only asked for accounting in event wife was granted divorce, husband was not estopped from accepting judgment granting accounting in absence of divorce, unless wife's position would be adversely affected.
3. — Divorce. Trial court had right to investigate financial status between husband and wife, notwithstanding husband's assertion that he did not want accounting, unless wife was granted a divorce, and court had right to enter upon such accounting, if it was satisfied from evidence that husband had suffered financially by acts of wife.
4. — Courts. Decision of Supreme Court is binding upon Court of Appeals.
5. — Divorce. Accounting may be taken in divorce action even though parties are denied divorce.
6. — Husband and Wife. In divorce action by wife against husband, upon counterclaim of husband for accounting, evidence sustained finding that conveyances, or promises thereof, by husband to wife were not intended as gifts.
7. — Husband and Wife. Where promise of conveyance of property if wife would marry husband was made before marriage, no presumption of gift from husband to wife would arise.
Appeal from Circuit Court of Greene County. — Hon. Warren L. White, Judge.
AFFIRMED.
Theo. G. Scott for Appellant.
I. The court erred in its verdict against plaintiff in the sum of $4,000.00 in favor of the defendant and said judgment is not supported by any substantial facts. This cause of action is one for divorce and the defendant in his answer set up as a defense that the plaintiff had treated the defendant badly; that he sold his farm and gave plaintiff the money and plaintiff agreed to do certain things such as convey to him a certain interest in her town property; that after he gave her the money she lost interest in him. Although the Court had no jurisdiction in this action to adjudicate an accounting between the parties — even if a separate and distinct action had been brought in a court of competent jurisdiction there is no evidence to substantiate a judgment and decree against the plaintiff of $4,000.00. The court in its decree stated that it was the sum received from the sale of the farm which brought $4,000.00, but the farm was owned by the plaintiff and the only interest the defendant had in said property was a life estate and that plaintiff deeded him a life estate in the Buffalo city property to take care of that claim. As between the parties themselves (husband and wife) a conveyance by husband and wife requires no pecuniary consideration. No fraud is alleged in the pleadings and none was proven. The conveyance was by warranty deed and cannot be impeached collaterally. 41 C.J.S. 690; Gentry v. Field 143 Mo. 399; Keener et al. v. Williams 271 S.W. 489, 307 Mo. 682. II. The court erred in finding a personal judgment against the plaintiff and in defendant's favor for the reason that the finding was outside of the pleading, issue and jurisdiction of the court. Defendant only sought to have the court go into an accounting between the parties if and after a divorce was granted which would have been subject to other pleadings on the part of the plaintiff if the court had granted a hearing for an accounting. This was a straight divorce action brought by the plaintiff and all pleadings touching property were set up by the defendant in the divorce action as a defense thereto alleging misconduct on the part of the plaintiff after the defendant had given or conveyed to her certain property. In a divorce action, the court is without jurisdiction to adjudicate property rights as between the parties. Nor can such a petition be intermingled with a petition for divorce, as is here attempted. Singleton v. Singleton 239 SW (2) 733; Bishop v. Bishop 151 S.W.2d 553, 556; State v. Mitchell 230 S.W. 116, 121. III. That the court erred in finding judgment against plaintiff in the sum of $4,000.00 based upon sale of farm formerly owned by defendant and which he had conveyed to plaintiff. All evidence showed that defendant had conveyed the farm to the plaintiff in consideration that plaintiff marry the defendant. Every conveyance made to a wife by her husband during the marriage and any payments made by a husband upon the indebtedness of his wife is presumed to have been a gift to the wife by the husband in the absence of clear and positive evidence to the contrary. Woerheide et al. v. Kelley et al. Mo. Sup. 243 S.W. 158; Gillespie v. Gillespie Mo. Sup. 289 S.W. 579; Pursley v. Pursley, Mo. App. 215 S.W.2d 302.
T.A. Shockley, Claude T. Wood for Respondent.
I. The verdict for respondent for $4,000.00 is supported by sufficient and substantial evidence. Lemon v. Lemon, 201 S.W. 103, 273 Mo. 848, 491, 492; Meador v. Ward, 260 S.W. 106, 303 Mo. 176. II. The finding and judgment of the trial court for respondent against appellant on respondent's counter claim was within the pleadings, issue and jurisdiction of the court. State v. Bland 210 S.W.2d 31, 36, 37; Wollums v. Mutual Benefit Health Accident Association, 46 S.W.2d 259, 226 Mo. App. 647; Wells v. Wells, 117 S.W.2d 700; Missouri Digest, Pleading, No. 2; Sub-section 9, Section 509.290, R.S. Mo., 1949; Section 509.340, R.S. Mo., 1949; Section 509.330. III. The trial court did not err in entering judgment against appellant in the sum of $4,000.00.
This is a divorce case, instituted in Dallas County, Missouri. Defendant (respondent herein) filed his application for a change of venue, and the case was transferred to the Circuit Court of Greene County, Missouri.
Plaintiff's first amended petition was filed in Greene County. Defendant refiled his first amended answer, counterclaim and cross bill. Plaintiff there filed her answer and reply.
The trial court rendered judgment denying both plaintiff and defendant a divorce, as prayed in the petition of plaintiff and in the cross bill of defendant.
The judgment of the court on defendant's counterclaim was as follows:
"The Court finds that under the evidence on the Counterclaim of the defendant, the defendant is entitled to the sum of $4000.00 from the plaintiff for money had and received by the plaintiff from the sale of defendant's farm is Dallas County, Missouri, all of which was received by the plaintiff by means of conveyances shown in evidence. Whereupon, it is considered, ordered and adjudged that the defendant have and recover of and from the plaintiff the sum of $4000.00 and all costs in this behalf expended and that execution issue therefor."
Plaintiff filed a motion for a new trial, which was not acted upon by the trial court for 90 days, and that motion was overruled because of lapse of time. Plaintiff afterward appealed.
It appeared in the testimony that defendant was seventy-six years old. Plaintiff's age does not appear. Both plaintiff and defendant had previously been married. Plaintiff claimed that defendant deserted her without cause, and defendant claimed that the reason he left plaintiff was at her command. Plaintiff contended that defendant agreed to give her certain property, if he would marry her, and defendant claimed that plaintiff took steps to get all of his property in her own name, and thereupon ordered defendant to leave.
There is no question in our minds that the trial court properly held, from the testimony, that plaintiff, by the steps shown in the evidence, secured at least $4000.00 of defendant's property.
Plaintiff's first contention is that the finding for $4000.00 against plaintiff is not supported by any substantial evidence. This contention must be overruled. The trial judge, on most substantial evidence, was justified in finding that, before his marriage to plaintiff, the defendant owned a substantial interest in a farm worth at least $4000.00. When defendant left plaintiff (whether of his own accord or at her command), he had no property whatever and plaintiff was the owner of all property previously belonging to defendant.
The second complaint of plaintiff is that defendant was not entitled to an accounting with her, because he had only asked for such an accounting in the event that plaintiff was granted a divorce, and that, therefore, defendant was not entitled to an accounting under the pleadings. Such a defense must be on the grounds of estoppel, although defendant had not asked for an accounting, unless plaintiff was granted a divorce. Neither the trial court nor defendant was prevented from the granting of such relief, unless plaintiff's position was adversely affected thereby. Plaintiff has not shown that her condition was adversely affected by defendant's assertion that he only desired an accounting in the event plaintiff was granted a divorce.
For the general situation, demanding the enforcement of the rule of estoppel, see the following: Johnson v. Ferguson, 329 Mo. 363, 44 S.W.2d 650-653; State ex rel. Consolidated School District No. 2 of Pike County v. Haid (Mo.) 41 S.W.2d 806.
The trial court had the right to investigate the financial status between plaintiff and defendant, notwithstanding defendant's assertion that he did not want such accounting, unless plaintiff was granted a divorce, and the trial court had the undoubted right to enter upon such accounting, if it was satisfied from the evidence that defendant had suffered financially by the acts of plaintiff. There is no merit in such contention.
The third ground of plaintiff's motion for a new trial is that an accounting could not properly be taken in a divorce case. We regard this contention as most worthy of consideration, in view of the action of the trial judge in awarding defendant a judgment for accounting against plaintiff, even though he denied both parties a divorce.
Plaintiff cites three cases on the proposition that, in a divorce case, the court is without jurisdiction to adjudicate property rights as between the parties to such divorce action.
Plaintiff cites Singleton v. Singleton, 239 S.W.2d 773; Bishop v. Bishop, 151 S.W.2d 553-557; State v. Mitchell, 230 S.W. 116, l.c. 212.
We find all of those cases cited in Singleton v. Singleton, supra, where Sperry, Commissioner of the Kansas City Court of Appeals, said:
"In a divorce action, the court is without jurisdiction to adjudicate property rights as between the parties."
That ruling was long held and would have settled the power of the trial court to make an accounting between plaintiff and defendant in a divorce case; but the Supreme Court of Missouri en banc, in the case of State ex rel. Fawkes v. Bland, et al., Judges, in 210 S.W.2d 31, seems to have taken a different view. That was a certiorari case, directed to the Judges of the Kansas City Court of Appeals, on account of an opinion of that Court in the case of Fawkes v. Fawkes, 204 S.W.2d 132. The case of State v. Bland ( 210 S.W.2d 31), was carefully considered in an opinion by Judge Ellison of the Supreme Court en banc. A decision of that Court, rather than the cases cited by plaintiff, is binding on us. Judge Ellison recognized the former ruling of the Missouri Courts that an accounting could not be taken in a divorce case. But he pointed out that the law had been materially changed since the former cases were decided. He affirmed the rule announced by Cave, Presiding Judge, of the Kansas City Court of Appeals, in the Fawkes divorce case. The reversal in State v. Bland, by the Supreme Court, was upon the custody of the child.
In State v. Bland, 210 S.W.2d p. 33, Judge Ellison said:
"And our counterclaim statutes Secs. 928, 929, repealed under the old Code, were so restrictive that they excluded a cross-action of such diverse nature as separate maintenance in a divorce suit. But Sec. 1 of the new Civil Code expressly repeals Sec's 928, 929, supra; and Sec. 37 thereof now expressly permits a defendant to set forth in his answer as many independent or alternative claims, legal, equitable or both, as he may have. Hence, an action for separate maintenance may be pleaded as a cross-action in a divorce suit, especially since Sec. 3382 of the separate maintenance law and Sec. 1515 of the divorce law both provide in practically the same words; `the like process and proceedings shall be had in such causes as are had in other civil suits.' (The italicized words are omitted in Sec. 3382)."
Judge Ellison again said:
"Sec. 37 of the new Code of Civil Procedure, on counter-claims, is very broad. It deals with the plaintiff's petition and reply and the defendant's answer. Counter-claims may be pleaded in all of these. They may be independent of alternate claims, and either party may join as many as he has, legal, equitable or both."
And again, Judge Ellison, with the approval of all the Judges of the Supreme Court of Missouri en banc, said:
"We think the conclusion reached in the Court of Appeals opinion that a wife's crossclaim for separate maintenance may be filed in her husband's divorce suit is correct."
That conclusion freed the trial court and frees this Court from the rule announced in the Singleton and other cases.
Plaintiff cites three cases in supposed support of her contention that the trial court erred in finding judgment against plaintiff, based upon the sale of a farm formerly owned by defendant. The cases cited are those dealing with transactions between husband and wife during coverture, unless supported by clear and positive evidence, because they are otherwise presumed to have been gifts.
Plaintiff cites three cases on Point III, page 18 of her brief, which Point is as follows:
"That the court erred in finding judgment against plaintiff in the sum of $4,000.00 based upon sale of farm formerly owned by defendant and which he had conveyed to plaintiff."
The evidence seems to be clear and satisfying that defendant did not intend his conveyances to his wife to be gifts. She was to make conveyance to defendant in exchange for his conveyance to her. The trial court had the right to find that such conveyances, or promise thereof, by defendant were not gifts to defendant's wife. The alleged promise of conveyance of property, if defendant would marry plaintiff, was before the marriage, and no presumption of a gift arises in that situation.
The judgment of the trial court must be affirmed. It is so ordered. Vandeventer, P.J., and McDowell, J., concur.