Opinion
No. 21459.
October 2, 1950.
APPEAL FROM THE JACKSON CIRCUIT COURT, JACKSON COUNTY, THOMAS R. HUNT, J.
Louis Wagner, William E. Byers, Kansas City, for appellant.
E. R. Morrison, R. L. Hecker, Kansas City, for respondent.
This is the second appeal in this case. On November 10, 1947, the Circuit Court of Jackson County granted a decree of divorce to plaintiff. That decree awarded her "by way of alimony the sum of Two Hundred Dollars ($200.00) per month, the first payment to be made November 10, 1947, * * *." From this judgment defendant appealed to this court. Our opinion on the prior appeal. Phillips v. Phillips, 219 S.W.2d 249, loc. cit. 276, concludes as follows: "However, we feel that under all of the circumstances the allowance of alimony to the plaintiff in the sum of $200 per month is inadequate and it should be raised to $400 per month, and it is so ordered. The judgment is otherwise affirmed."
This court's judgment, entered March 7, 1949, recited that "* * * the judgment aforesaid, in form aforesaid by the said Circuit Court of Jackson County rendered be affirmed, with the provision that the judgment for alimony shall be increased to $400.00 per month; * * *."
On June 13, 1949, the Trial Court entered an order and judgment conforming its judgment of November 10, 1947, to the judgment of this Court of March 7, 1949. This entry of June 13 recites that the mandate has been filed and presented, sets forth in full the judgment of this Court, and then continues as follows: "Now, Therefore, it is ordered adjudged and decreed, in conformity with said mandate that the judgment heretofore entered in this case on November 10, 1947, shall be and remain in full force and effect from said date in the form heretofore rendered but with the provision that the judgment for alimony rendered therein shall be increased to $400.00 per month so that said judgment and decree shall read as follows, to-wit: * * *."
Then follows an exact copy of the judgment rendered November 10, 1947, except that where the figure "$200.00" previously appeared, the figure "$400.00" was substituted so that the portion of the decree relating to alimony as modified reads as follows: "It is further adjudged and decreed by the Court that the defendant pay to plaintiff by way of alimony the sum of Four Hundred Dollars ($400.00) per month, the first payment to be made November 10, 1947, * * *."
Defendant-appellant contends that this Court, by its judgment of March 7, 1949, intended to make the increase in the amount of alimony effective only from and after such date, and that the Trial Court on June 13, 1949, improperly attempted to make this Court's judgment retroactive.
Plaintiff-respondent contends that when this Court affirmed the judgment of the Trial Court " in form aforesaid * * * with the provision that the judgment for alimony shall be increased to $400.00 per month," the effect and intent of the Court's ruling was that such increase be in effect from the same date as that provided in the affirmed judgment, to-wit: November 10, 1947.
Stated more briefly, the only issue is: On what date did the increase in alimony become effective.
Both as a matter of construction of the language used in this Court's judgment of affirmance and as a matter of reason and common sense applied to the facts, it is clear that this Court intended the increase in alimony to $400.00 per month to be effective as of the date of the original judgment.
This Court did not direct that any change be made in the judgment except "that the judgment for alimony be increased to $400.00 per month." Otherwise, the judgment "in form aforesaid" was affirmed. A vital and essential part of the original judgment was the provision with respect to the date on which payment of alimony was to commence, namely, "the first payment to be made November 10, 1947." When this Court said that the judgment was affirmed "in form aforesaid", and that the amount of alimony should be increased to $400.00 a month, it did not have to say when payments at that rate should begin because the judgment affirmed already said November 10, 1947. If this Court had intended that payments at the new rate should start on March 7, 1949, it would have said so. This Court decreed that there should be one change and one change only in the judgment, namely, in the amount of alimony. There was no necessity for this Court to write into its judgment a provision that the date of the first payment of alimony was not intended to be changed. The judgment was affirmed in the form rendered and plainly, this applied to every word in it except as specified in the judgment with respect to the $200.00 allowance.
The original judgment was held to be inadequate by this Court on evidence introduced at a trial in May, 1947, on which judgment was entered by the trial judge on November 10, 1947. This Court considered no new evidence. It was merely deciding what the trial court should have decided in the first place. There would have been neither reason nor justice in denying plaintiff the benefit of the increase during the period from November, 1947 to March, 1949.
The judgment should be, and is affirmed.
DEW, P. J., concurs.
CAVE, J., not sitting.
VANDEVENTER, J. (sitting by order of Supreme Court), concurs.