Opinion
No. 28329.
February 19, 1952.
J. Grant Frye, Cape Girardeau, for appellant.
Respondent not represented by counsel in this court.
This is an appeal by defendant from an order of the Cape Girardeau Court of Common Pleas overruling defendant's motion to quash an execution.
The sole question presented is the sufficiency of the record to sustain an execution. The pertinent facts as disclosed by the record are as follows: On January 2, 1951, plaintiff (respondent) filed her petition for divorce, stating in it that two children were born of the marriage and concluding it with a prayer for divorce and custody of the two minor children, together with a reasonable allowance for their support. In proper time defendant (appellant) filed his answer. After hearing the testimony, the court on March 1, 1951, entered the following decree:
"Now at this time pursuant to adjournment and continuance, testimony in said cause having been heard in part on the 26th day of Feb. 1951, comes the plaintiff in person and by R.P. Smith, her attorney, and comes the defendant in person and by J. Grant Frye, his attorney. Thereupon said cause is resumed and the remainder of the testimony submitted to the court, and the court, after hearing all the evidence in said cause, and being satisfied that plaintiff is the innocent and injured party and entitled to the relief prayed in her petition, doth order, adjudge and decree that she be and she hereby is absolutely divorced from the bonds of matrimony existing between plaintiff and said defendant, and that she be and she hereby is restored to all the rights and privileges of an unmarried person.
"And it is further ordered, adjudged and decreed by the court that plaintiff have the care and custody of the two minor children mentioned in plaintiff's petition, namely, Elmer Leon Lohmann, age four years, and Michael Wayne Lohmann, age three years, and that defendant be given the privilege to visit said children at suitable times and places.
"It is further ordered, adjudged and decreed by the court that defendant pay to plaintiff for the support and maintenance of said minor children the sum of One Hundred Dollars ($100.00) a month, and the further sum of One Hundred Dollars ($100.00) as attorney's fees for the services of her attorney in this matter, for all of which plaintiff shall have execution."
On March 28, 1951, the court entered the following order: "On the court's own Motion, the decree of divorce granted plaintiff, LaWanda Lohmann, heretofore on the 1st day of March, 1951, is hereby set aside and for naught held for the reason that the plaintiff is reported to have made false statements in her testimony on the trial of the case concerning her relations with other men."
On March 26, 1951, plaintiff procured an execution, alleging that $225.80 was due on the judgment entered March 1, 1951. On April 6, 1951, the Sheriff served the execution and levied on the wages of the appellant by summoning his employer as garnishee.
Thereafter, appellant filed a motion to quash the execution, giving as grounds therefor the following:
"That on March 29th [28th] 1951, this Court, of its own Motion, set aside the Decree of Divorce and Judgment aforesaid so that the Execution and Levy are without authority of a Judgment to sustain them.
"That defendant's efforts to cause garnishee and the Sheriff to disregard such Execution and Levy by way of Garnishment thereunder have been disregarded and his wages and property are tied up."
It will be noted that the court in making its order of March 28, 1951, merely set aside "the Decree of Divorce," and made no mention of that part of the decree awarding attorney's fees to the plaintiff and custody of the two children, together with $100 per month for their support. An examination of the record indicates that the court intended only to set aside the decree of divorce, intending the allowance for attorney's fees and support money to remain in effect. This we glean from the court's comments made at the hearing on the motion to quash the execution, when it said: "As I understood that order, the allowance was not to be set aside. * * * All that the Court was to set aside was to set aside the decree and my order was to stand." May these allowances remain and form the basis of a judgment subject to execution? We think not.
An examination of the cases clearly shows that an action for divorce is purely a statutory proceeding. Schumacher v. Schumacher, Mo.App., 223 S.W.2d 841; Bishop v. Bishop, Mo.App., 151 S.W.2d 553; Klenk v. Klenk, Mo.App., 282 S.W. 153; Robinson v. Robinson, 268 Mo. 703, 186 S.W. 1032. Turning to our statutes concerning divorce and the care, custody and maintenance of children, we find that RSMo 1949, § 452.070, V.A.M.S., provides: " When a divorce shall be adjudged, the court shall make such order touching * * * the care, custody and maintenance of the children, or any of them, as, from the circumstances of the parties and the nature of the case, shall be reasonable, * * *." (Emphasis ours.)
This court has held many times that the primary object of a divorce action is to dissolve the marital status; and that incidental thereto, the court is authorized, as a part of its decree, to make provision respecting the custody and maintenance of children. Schumacher v. Schumacher, supra. If a provision covering custody and maintenance of children is merely incidental to the primary object of a divorce action, it logically follows that a decree of divorce must accompany or precede any order of a court in a divorce action awarding custody and maintenance of children. It was so held in Klenk v. Klenk, Mo.App., 282 S.W. 153, loc. cit. 157, where Judge Bennick, speaking for this court, said:
"This section of the law (RSMo 1949, § 452.070, V.A.M.S.) would seem to indicate that it is only when a decree of divorce is granted that the court has authority to award the children to either of the parents.
* * * * * *
"The case at bar is an action at law, and is governed wholly by the statutes in relation thereto. * * * That a court of equity has the power to determine the custody of minor children is well established, but, as we have indicated above, we find no authority for holding that a court has any such authority in an action for divorce when a decree is denied." Parenthesis ours.)
From this it appears clear that when the court made its order of March 28, 1951, setting aside the "decree of divorce granted plaintiff," it had the effect of setting aside all the provisions of the divorce decree that were incidental thereto, including the maintenance allowance for the children and the allowance for attorney's fee. Nothing remained; the entire decree was set aside. The vacation of the decree of divorce restored the parties to their previous marital status in all respects.
Turning our attention now to the execution procured and served by plaintiff, we find, the decree upon which it purported to rest having been set aside and vacated by the court within the time permitted under the law, that the execution fell with it. Francis v. Francis, 192 Mo.App. 710, 179 S.W. 975, loc. cit. 980. Where an execution is not supported by a valid decree or judgment, a motion to quash it is the proper remedy. Weniger v. Weniger, Mo.App., 32 S.W.2d 773.
Therefore, it follows that the order appealed from should be reversed and the cause remanded with directions to quash the execution, and the levy and garnishment made thereunder. It is so ordered.
BENNICK, P.J., and ANDERSON, J., concur.