Wyrick v. Wyrick

• Decision Date: 26 March 1912
• Citation: 145 S.W. 144
• Parties: WYRICK v. WYRICK.
• Court: Missouri Court of Appeals

145 S.W. 144

WYRICK v. WYRICK.

Springfield Court of Appeals. Missouri.

March 26, 1912.

1. DOMICILE (§ 1)—HUSBAND AND WIFE (§ 295)—SUIT FOR SEPARATE MAINTENANCE— ALLOWANCE OF TEMPORARY ALIMONY.

A suit by a wife for maintenance is in the nature of a suit in equity, and the court under its inherent equity powers may allow her alimony pending the litigation.

2. APPEAL AND ERROR (§ 1009)—FINDINGS— CONCLUSIVENESS.

Though the court on appeal in a suit in equity has power to review the testimony, it will defer largely to the findings of the chancellor on conflicting oral testimony.

3. DOMICILE (§ 5)—DOMICILE OF HUSBAND —DOMICILE OF WIFE.

The common-law rule that the domicile of a husband was the domicile of his wife is generally followed in most actions other than those for divorce and maintenance.

4. HUSBAND AND WIFE (§ 289)—DOMICILE OF HUSBAND—DOMICILE OF WIFE.

Where a husband is guilty of such misconduct as will justify his wife in leaving him and furnish a ground for divorce, she may acquire a domicile of her own independent of his, for the purpose of maintaining an action for separate maintenance, provided the grounds for maintenance authorize a divorce.

5. VENUE (§ 28) — JURISDICTION — "RESIDENCE" —"DOMICILE."

The word "residence," in the statute fixing the venue of actions, is synonymous with the word "domicile," and the domicile of a person is the place in which he has voluntarily fixed his abode, not with a temporary purpose, but with the intention of making it his present home.

6. HUSBAND AND WIFE (§ 297)—ACTION FOR SEPARATE MAINTENANCE — VENUE — RESIDENCE OF WIFE.

Evidence held to justify a finding that a wife has acquired a residence in a county, within Rev. St. 1909, § 8301, authorizing actions for separate maintenance in the county wherein the husband or wife resides.

7. HUSBAND AND WIFE (§ 295)—ACTION FOR SEPARATE MAINTENANCE—MOTION FOR TEMPORARY ALIMONY—JURISDICTION.

Where a de facto marriage exists, the validity of the marriage cannot be determined on a motion by the wife for alimony pending her action for separate maintenance.

8. HUSBAND AND WIFE (§ 288)—ACTION FOR SEPARATE MAINTENANCE—DEFENSES.

An action by a wife for separate maintenance with the power of the court to grant her temporary alimony is not barred by the husband's offer to take her back into his home as his wife, followed by her refusal to return, where such offer is not made in good faith, and the wife cannot reasonably expect the husband to keep his promise.

Appeal from Circuit Court, Wright County; C. H. Skinker, Judge.

Action by Clara F. Wyrick against Douglas J. Wyrick. From a judgment awarding temporary alimony, defendant appeals. Affirmed.

E. H. Farnsworth, of Mountain Grove, and Lamar, Lamar & Lamar, of Houston, for appellant. A. M. Curtis and Chas. W. Evans, both of Hartville, for respondent.

NIXON, P. J.

This was an action by the plaintiff under the statute for maintenance. On her motion the circuit court allowed plaintiff temporary alimony in the sum of $150, and from this action of the court the defendant appealed.

The petition alleges that plaintiff and defendant were married on the 29th day of March, 1911, in the state of Iowa; that plaintiff lived with defendant as his wife until the 11th day of April, 1911; that during all that time plaintiff faithfully demeaned herself and discharged all her duties as the wife of the defendant and at all times treated him with kindness and affection; that she has her home and residence in Wright county in the state of Missouri; that on April 11, 1911, defendant, wholly disregarding his duties as the husband of the plaintiff, did, without good cause, abandon the plaintiff in Wright county in the state of Missouri, and has ever since refused, failed, and neglected to maintain and provide for her. "Plaintiff further alleges: That, shortly after said marriage, the defendant began a system of such cruel and barbarous treatment as to endanger the life of the plaintiff and offered to her such indignities as rendered her condition intolerable. Among other indignities and cruel acts, he was continually cursing and abusing the plaintiff and using vile, obscene, and profane language, and trying to drive her away from his home. That he slept with a pistol and a bottle of whisky under his pillow or near the bed occupied by petitioner and defendant every night terrified the plaintiff. That the defendant is a man of extreme passions, and, although he knew the plaintiff was not physically strong, he was insisting upon the plaintiff satisfying his brutal sexual passions until within a few days after said marriage she was a physical wreck. That in order to gratify his passions he forced the plaintiff to swallow whisky, and otherwise enforced brutal treatment upon her." The prayer is that an order and decree be entered that defendant pay her for her support and maintenance the sum of $75 monthly, and that defendant be compelled to give security for such maintenance, and that defendant be required to pay alimony and attorney's fees pending this proceeding.

The defendant in his answer alleges want of jurisdiction "for the reason that the plaintiff at the time of bringing said suit was not a resident of Wright county, Mo., and this defendant was, at said time, and at the time of service of process on him herein, a resident of Douglas county, Mo., and for the reason that at the time said suit was brought, and at all times since said date, both the plaintiff and the defendant were nonresidents of Wright county, Mo., and neither of said parties resided within said county, and because defendant says that no status of marriage ever existed between plaintiff and defendant in said Wright county, Mo." The answer also sets up a general denial, and a plea that plaintiff at the time of her marriage to the defendant was the lawful wife of one John Graham Adair.

Plaintiff filed the following motion for temporary alimony (formal parts omitted): "Now comes the plaintiff and represents to the court that she has commenced in this court an action against this defendant, her husband, for support and maintenance, alleging, among other things, that this defendant had without cause ordered and driven her from his home and had neglected and refused to support and provide for her; that she is totally without means to support herself or to employ counsel to prosecute her said action; that the defendant, her husband, is seised and possessed of real and personal property to the value of $20,000. Wherefore plaintiff prays the court for a reasonable allowance and judgment for alimony against the defendant for the support and maintenance of herself and to pay attorney's fees for the prosecution of her said action." Upon hearing this motion, the court sustained the same, and temporary alimony was allowed in the sum of $150. The plaintiff's testimony was, in part, as follows: That just before her marriage to defendant, she and defendant went to the office of an attorney in the city of Omaha, Neb., whom she had formerly known, and asked him if the divorce had been granted, and that said attorney informed them that it had not and could not be granted for some time. That defendant was very insistent that a divorce was unnecessary and was urging the marriage at once without any divorce. That they asked said attorney about this, and the substance of his answer was that they had no legal right to marry; but there probably would be no trouble over it if they did unless her former husband returned. That after this she and the defendant crossed into Iowa and were married. That she had no property except a town lot in a town in Illinois which was worth about $200. That after being abandoned by her husband in Mountain Grove, in Wright county, Mo., she went to the Palace Hotel, where she secured employment as a domestic. That she had never been divorced from her former husband and did not know whether he was living or dead. On being asked by the court if she was willing to return to and live with the defendant, she stated that she was not; that he had abandoned her once, and she would not go back to him because of the way he had treated her while living with him. The evidence given by the plaintiff was substantiated in important particulars by the deposition of John T. Dillon, an attorney of Omaha, Neb.

The testimony of the defendant was substantially as follows: That a short time before he married the plaintiff she informed him that a divorce had been granted to her from her former husband, and they went over into Iowa and were married. That soon thereafter they went to the home of the defendant in Douglas county, Mo., reaching there on Tuesday. That plaintiff was dissatisfied with her home and surroundings and refused to remain longer than the following Monday, when the defendant, at the earnest solicitation of the plaintiff, took her to Mountain Grove, Mo. That defendant asked the plaintiff where she desired to be taken, and that she told him to put her out between the two hotels, which were just across the street from each other, and that defendant did so. That the plaintiff gave as a reason for not remaining on the farm with the defendant that she had been accustomed to living in the city, and that she was so much isolated and so lonely that she could not and would not remain on the farm of defendant. That defendant's farm was in Douglas county, Mo. Defendant further testified that he did not abandon the plaintiff; that he had been at all times willing and was now willing to live with the plaintiff if she would come and live with him; that he would support and provide for her in a manner commensurate with their condition and situation in life, and would treat her with kindness and affection; and that he was ready to do this at any time the plaintiff would come back and live with him. Defendant also stated that his residence is Douglas county, Mo., and that he had never been at any time a resident of Wright county,...