Opinion
No. 42985.
September 8, 1952.
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, PAUL A. BUZARD, J.
Lucien W. Littick, Kansas City, for appellant.
James P. Aylward, George V. Aylward, Terence M. O'Brien, Kansas City, for respondent.
This is an appeal from an order overruling a motion to modify a decree of divorce. Movant was plaintiff in the action for divorce instituted by him in 1944, which action culminated in a decree of divorce to the defendant wife on July 31, 1944. The decree of divorce approved and incorporated a "Separation Agreement," therefore entered into July 27, 1944, between the parties, in which separation agreement the husband undertook to pay the wife the sum of $9,600 per year, payable in equal monthly installments of $800 "for alimony, future support and maintenance without any decrease, reduction, diminution or diminishment * * * and without any increase in the amount thereof" until the remarriage or death of the wife or death of the husband ("whichever event may occur at the earliest date").
The separation agreement recited that differences had arisen between the parties and they had decided to live separately and to settle all of their property rights and interests; and that they entered into the agreement with regard to a settlement of their property rights and interests, and to make provision for the future support and maintenance of the wife and the three minor children. The agreement recited that in the event that the wife should obtain a decree of divorce she should be allowed a judgment for future support, maintenance and permanent alimony as in the agreement set forth without any reduction or increase in the amount thereof.
The agreement provided in Paragraph One that the husband should pay the wife the (net) sum of $9,600 per year payable in equal monthly installments of $800 "for alimony, future support and maintenance" until her death of remarriage, but prior to the death of the husband. It was further provided that, if the husband died prior to the death or remarriage of the wife, the husband's estate should pay the wife the net sum of $400 per month, and further, in such eventuality, and if the death of the husband occurred before the minor children attained their majority, the husband was presently bound to provide and would now make provision in his will for a sufficient sum of money for the education, support and maintenance of the minor children "so that party of second part (the wife) shall not be required to use any of the $400 net a month which she will receive and be paid upon the death of first party for her own individual, sole and separate support and maintenance under terms of this agreement, for the support and maintenance of said minor children during any of the time before they or either of them reach the age of twenty-one years."
It was agreed that the wife should be conveyed the family residence property, title to which, at the time of the agreement, was in the husband and wife; and that another property on West Fifty-Ninth Street in Kansas City, title to which was then vested in the husband and wife, should be conveyed to others for life, with remainder to the husband. The wife was to receive all of the furnishings, furniture and personal effects in the home, except certain specified items. The husband undertook to pay the tuition necessary for the education of the children in named schools in Kansas City and to pay the tuition and for the education of the children for a period of at least four years in any college or university. The husband was to continue the payment of comparatively small weekly allowances to the minor children.
The agreement provided that the "general and personal possession, care, custody and control of the minor children * * * will and shall be vested in the second party (the wife) * * *." But it was provided that in the event of the remarriage or death of the wife, prior to the attainment of the majority of the minor children, the husband, at his own expense, should support, maintain and educate the children suitable to their station in life.
The wife relinquished and forever released all marital rights of every kind, nature and description including dower to or against the husband or his property or estate. And it was further provided as follows,
"In the event the parties shall be divorced, this agreement may be exhibited to the court and both parties consent and agree that the court may adjudge and decree that first party shall make the specific payments herein provided for the future alimony, support and maintenance of party of the second part and carry out and perform the provisions of this contract and the same shall become effective and enforcible with approval of the court and when made, be incorporated in and shall form and become a part of the judgment and decree of said court, the terms of which shall not be enlarged, altered, changed, revised, or modified, by court or parties, and same shall be subject to be enforced as all final judgments under the law by order of the court or by execution issued upon said judgment to enforce the same under any order of the court in accordance with said judgment and decree."
The trial court, in rendering its decree in the original action for divorce, granted a divorce to the defendant wife; found the separation agreement was "reasonable, fair and equitable and should be approved"; adjudged that the wife should have the "care, custody and control of the minor children"; and ordered that the agreement be approved and considered a part of the judgment, finding and decree of the court, and the plaintiff husband and his personal representatives were "ordered to pay to defendant by way of alimony and for her future support and maintenance" the specific sums provided in the agreement as and when the same should become due and payable under the terms thereof.
Movant-appellant stated in his motion the facts to be, and we infer such facts are conceded, that two of the children of appellant, former husband, and respondent, former wife, have attained their majority and the other, although of the age of twenty, has married and become emancipated. Movant-appellant moved the trial court and herein upon appeal contends that he is now entitled to a modification of the decree of divorce so as to be discharged from the further payment of $400 per month, half of the net monthly amount, $800, which half he, movant-appellant contends, was, according to a fair and reasonable construction of the divorce decree, for the support and maintenance of the children during their minority; and that the trial court erred in refusing to so modify the decree.
We have the duty to determine in each case whether this court has jurisdiction of the appeal. The appellate jurisdiction of this court is not a general one, but one specifically limited by the Constitution. This court's appellate jurisdiction of this appeal, if it exists, must rest upon the ground of "the amount in dispute". Const. Art. V, § 3, V.A.M.S. When the object of an action is not to obtain a money judgment, but some other relief, the amount in dispute is determined by the value in money of the relief sought to the plaintiff or the loss to defendant should the relief be granted or, vice versa, should the relief be denied.
In the instant case the movant sought modification of the divorce decree to the extent of $400 for each month, or $4,800 for each of subsequent years, and it is true the relief sought if granted might in subsequent years be of money value much in excess of $7,500. But, on the other hand, it is quite apparent the relief sought, if granted, might not amount in money value to a sum in excess of $7,500. The value of the relief sought is contingent. It cannot be said the (former) wife will not remarry, nor can it be said the wife and the (former) husband will live for such a time as would make the money value of the modification which movant seeks equal to a sum in excess of $7,500. Appellate jurisdiction is vested in this court upon the ground of "amount in dispute" when, and only when, the record of the trial court affirmatively shows an amount in dispute, independent of all contingencies, exceeding $7,500 exclusive of costs. Stuart v. Stuart, 320 Mo. 486, 8 S.W.2d 613; Vordick v. Vordick, 281 Mo. 279, 219 S.W. 591; Umlauf v. Umlauf, 103 Ill. 651; Const. Art. V, § 3, supra. See also Hardt v. City Ice Fuel Co., 340 Mo. 721, 102 S.W.2d 592. The case of Maxey v. Maxey, Mo.Sup., 203 S.W.2d 467, is out of harmony with this opinion, and with the cases cited and relied upon in this opinion; and, with respect to the ruling of the question of appellate jurisdiction, the Maxey case should no longer be followed.
The cause should be transferred to the Kansas City Court of Appeals.
It is so ordered.
LOZIER and COIL, CC., concur.
The foregoing opinion by VAN OSDOL, C., is adopted as the opinion of the court.
All of the Judges concur.