Stauffer v. Stauffer
| Decision Date | 07 December 1920 |
| Parties | FRANCES A. STAUFFER, Appellant, v. JOHN B. STAUFFER, Respondent |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. George H. Shields, Judge.
REVERSED AND REMANDED (with directions).
Judgment reversed and cause remanded.
George F. Beck, for appellant.
(1) An offer of reconciliation must be made in good faith and not merely to lay a foundation for a divorce. It must be couched in terms likely to bring about a reconciliation. A cold and formal invitation to return, especially if it does not contain an expression of regret for the offerer's own wrong-doing, is not sufficient as an offer of reconciliation and may be disregarded. 14 Cyc. p. 619. (2) Where one spouse has been guilty of a legal desertion, it seem well settled that he or she, in order to deprive the other of the right to a divorce, must make the overtures for a reconciliation before the statutory period has elapsed, and the right of the deserted spouse to a divorce has accrued. Overtures after such right has accrued are ineffectual to deprive the deserted spouse of his or her right. 9 R. C. L., p. 373, sec 161; 14 Cyc., p. 620. (3) In this case plaintiff has clear grounds for a divorce. But grounds for divorce are not necessary to warrant her refusal to live with defendant. All that is required is that she have reasonable cause for her refusal. R. S. 1909, sec. 2370 and 8295; Tarrant v Tarrant, 156 Mo.App. 725; Gillinwaters v Gillinwaters, 28 Mo. 60; Neff v. Neff, 20 Mo.App. 182. (4) Condonation is forgiveness on condition that the offense be not repeated. If this condition is not kept, the right of the injured party to urge the condoned indignities as grounds for divorce is restored. Herriford v. Herriford, 169 Mo.App. 641; Moore v. Moore, 41 Mo.App. 176. (5) There must be evidence of knowledge of the adultery. Condonation cannot take place without it. Welch v. Welch, 50 Mo. 395, 19 C. J., p. 84, sec. 194.
Rollins, Schneider & Halter for respondent.
(1) Appellant should have accepted respondent's offer to take her again into his home and take care of her. The offer was made in sincerity. Creasey v. Creasey, 168 Mo.App. 98. (2) The judgment and verdict of the trial court was for the right party and is supported by substantial evidence. The trial court had the opportunity of observing the attitude of the witnesses on the stand. The verdict should not be reversed by the appellate court. Van Frank v. Missouri Pacific Ry. Co., 89 Mo.App. 460; Torlotting v. Torlotting, 82 Mo.App. 192; Huffman v. Huffman, 217 Mo. 182. 1; Rawlings v. Rawlings, 102 Mo. 563. (3) The trial court committed no error in excluding testimony on behalf of plaintiff, because: (a) The things complained of, if committed, had been condoned by the appellant. Appellant will not be permitted to assume a different theory on appeal to that taken in the trial court. Appellant assumed the position in the trial court that there had been a reconciliation with a promise to desist; on appeal she should not be permitted to urge that she had no knowledge. Moore v. Moore, 41 Mo.App. 176; Wiber v. Strobel, 236 Mo. 649; Richter v. Merril, 84 Mo.App. 150; Williams v. Railway Co., 233 Mo. 666. (b) The matters complained of were not pleaded in plaintiff's petition and therefore could not be presented as grounds for affirmative relief. Pattison's Missouri Pleading, secs. 676, 763, 880; Mathieson v. Railroad Co., 219 Mo.App. 522; Mahill v. Jenkins, 69 Mo.App. 279; Rhodes v. Land & Lumber Co., 105 Mo.App. 279. (c) Appellant cannot complain of error because she failed to offer proof of the things and matters complained of. There is nothing before the appellate court to show what evidence appellant desired to introduce. Shelby Co. Ry. Co. v. Crawford, 235 Mo. 459; Holzmer v. Metropolitan Street Ry. Co., 261 Mo. 379, 169 S.W. 102; Louis v. Louis, 134 Mo.App. 566.
This is an appeal from the judgment of the trial court dismissing plaintiff's suit for separate maintenance. Plaintiff's petition sets out the marriage of the parties in 1880 and that the defendant deserted plaintiff in 1910 and thereafter failed to properly support plaintiff.
It is not disputed but that the defendant voluntarily abandoned plaintiff as alleged in the petition and that though defendant did make payments to the plaintiff from time to time after he abandoned her, yet such payments were insufficient for her support, and that from February, 1918, until November, 1918, and from January, 1919, up to December 4, 1919, the date of the trial below, defendant failed to pay anything for her support and maintenance.
It appears that in July of 1918, plaintiff had filed a prior suit for maintenance which suit, during the progress of the hearing thereof, was dismissed by the plaintiff.
The sole defense to this action is that the defendant, on July 17, 1918, (several days after the wife had filed her suit for maintenance), offered to receive his wife again into his home and to support her; that such offer was renewed on the 24th day of January, 1919, and again renewed at the time of the trial of this case below, and that the plaintiff refused and still refuses to return to the defendant and resume the relation of husband and wife.
The learned trial judge at the time of dismissing plaintiff's bill and entering judgment against her, filed the following memorandum:
We are of the opinion and so hold that the learned trial court was in error in arriving at its conclusion in this case as well as its view that the Creasey case was authority for such ruling. In the Creasey case, which was a suit for maintenance, the record discloses that less than the statutory period of one year, in fact less than four months, had elapsed from the date of the alleged desertion up to the time of the filing of the suit, so that the right of the deserted wife to a divorce on that ground had not accrued.
The record in the case before us discloses that the desertion had continued for more than eight consecutive years immediately next before the filing of plaintiff's petition for maintenance, and consequently Mrs. Stauffer had become entitled to a divorce on the ground of desertion many years prior to the filing of her...
To continue reading
Request your trial