Barth v. Barth

• Decision Date: 18 September 1945
• Docket Number: No. 26805.,26805.
• Citation: 189 S.W.2d 451
• Parties: BARTH v. BARTH.
• Court: Missouri Court of Appeals

189 S.W.2d 451

BARTH v. BARTH.

No. 26805.

St. Louis Court of Appeals. Missouri.

September 18, 1945.

Appeal from Circuit Court, Jefferson County; E. T. Eversole, Judge.

"Not to be reported in State Reports."

Action by Paul M. Barth against Gayle Barth for divorce. From an order overruling defendant's motion to set aside a default judgment against her, defendant appeals.

Reversed and remanded with directions.

Doran, Doran & Doran, of Boone, Iowa, and M. C. Matthes and J. W. Thurman, both of Hillsboro, for appellant.

Sam M. McKay, of De Soto, and Albert S. Ennis, of Festus, for respondent.

SUTTON, Commissioner.

This is a suit for a divorce, commenced in the Circuit Court of Jefferson County, on July 20, 1942. Defendant was not served with summons. Service was had by publication. On September 22, at the September term, 1942, judgment by default was rendered, divorcing plaintiff from the bonds of matrimony contracted with defendant. On December 18, at the same term, defendant filed her motion to set the judgment aside. From the order overruling this motion defendant appeals.

The motion was put on the ground that the Circuit Court of Jefferson County did not have jurisdiction, for the reason that the suit was not brought in the county where plaintiff resided, and for the further reason that plaintiff had not resided in this state one whole year next before the filing of the petition.

Plaintiff in his petition alleged that he was a resident of the state of Missouri and had been for one whole year next before the filing of the petition. The statutory affidavit was annexed to the petition. As grounds for a divorce he alleged intolerable indignities.

Plaintiff and defendant were married at Iowa City, Iowa, on February 16, 1918. They lived together as husband and wife until 1937. One child was born of the marriage, a girl named Wyllis Glee. Until their separation plaintiff and defendant resided in Iowa. They resided at Boone at the time of their separation. Plaintiff left defendant on March 10, 1937, and went to Des Moines. He was at Des Moines until May 21, 1937, when he went back to Boone. He was at Boone until July 3, 1937. From Boone he went to Melcher. He went from Melcher back to Boone. He left Boone the last of October, 1937, and went to Pella. He was at Pella until the last of May, 1938. From there he went back to Des Moines. He went back to Boone several times from Pella, but went back to Des Moines after May, 1938. When he went back to Boone he would stay there at the family home. He stayed at Des Moines until he was called into the army, on December 9, 1940. He was a dentist and practiced dentistry at Des Moines.

In June, 1939, plaintiff brought suit against defendant for a divorce in Polk County at Des Moines. In his petition in that suit he alleged that both parties were residents of the state of Iowa, and that plaintiff had been a resident of Des Moines for a period of approximately two years. That suit culminated in a judgment on March 3, 1941, dismissing plaintiff's petition and awarding defendant two hundred dollars per month for separate maintenance, two hundred dollars to be paid on the first of April, 1941, and two hundred dollars on the first day of each and every month thereafter.

At the time that judgment was rendered, plaintiff was stationed at Fort Snelling, near Minneapolis, Minnesota. He had the rank of major. From Fort Snelling he went to Fort Leonard Wood, Missouri, in May, 1941.

Wyllis Glee was seventeen years of age at the time of the commencement of the divorce suit at Des Moines.

On July 7, 1941, plaintiff commenced a suit for divorce against defendant in the Chancery Court of Boone County, Arkansas. In his petition filed in that suit he alleged that he was then and had been a resident of Harrison, in Boone County, Arkansas, for more than sixty days before the filing of the petition. He testified upon the trial of that suit, which was had on September 1, 1941, that his residence was in Harrison, Arkansas; that he had been a resident of Harrison for more than sixty days before the filing of the suit, that is, since May 2, 1941; that he lived at the Midway Hotel; that he had been a resident of Boone County, Arkansas, for more than ninety days. The trial resulted in a judgment by default granting plaintiff a divorce. Defendant had no knowledge of the pendency of the suit until after the judgment was rendered. Upon being informed that plaintiff had been granted a divorce she promptly moved to vacate the judgment on the ground that the court was without jurisdiction to render the judgment, because plaintiff was not a bona fide resident of Arkansas. The court declined to vacate the judgment, and defendant appealed to the Supreme Court. On April 27, 1942, the Supreme Court reversed the order of the Chancery Court and remanded the case to said court with directions to vacate the judgment. See: Barth v. Barth, 204 Ark. 151, 161 S.W.2d 393. Plaintiff then went to Jefferson County and brought the present suit.

Upon the hearing of the motion to vacate the judgment of the Arkansas chancery court, plaintiff testified that upon being sent to Fort Leonard Wood he was directed to report at Camp Robinson, Arkansas, for maneuvers, which continued until August 11th or 12th; that he became ill and spent two days in a hospital; that military maneuvers were continued at Camp Robinson, also in South Arkansas, and in Louisiana; that after being assigned to Fort Leonard Wood he voluntarily went to the state of Arkansas from a little town in Missouri, near Poplar Bluff; that from the hospital somewhere in Louisiana he returned to Camp Robinson, remaining ten days from September 17th; that he then returned to Fort Leonard Wood where he had been stationed until the time of the trial, and where, with the exception of a fourteen-day leave, he remained; that he selected Harrison as his home because he expected to start practicing as a dentist there if he got out of the service within the next year; that the residence there was established May 5 or 15, 1941; that when not on army duty he spent his spare time in and about Harrison; that he engaged a room in Harrison because he wanted to establish a residence there for the purpose of a divorce; that he did not remain all night, but paid a month's rent and left a suit of clothes in the room; that he was there two or three times a day, remaining overnight; that he was there two or three times in July.

Upon the trial of the present motion plaintiff testified that he was called into service from Des Moines on December 9, 1940; that he reported for duty at Fort Snelling, near Minneapolis; that he was assigned to the Sixth Medical Battalion; that he remained at Fort Snelling until the latter part of April, 1941, and was then transferred to Fort Leonard Wood, Missouri; that he reported to Fort Leonard Wood on May 5, 1941; that he remained at Fort Leonard Wood until November 15, 1942; that in July, 1942, he was transferred out of the Sixth Medical Battalion into the Surgeon's Office of the Sixth Division there at Fort Leonard Wood; that he was attached to the Surgeon's Office of the Sixth Division at Fort Leonard Wood until November 15, 1942; that on that date he went on desert maneuvers; that he left the Sixth Division on January 24, 1943; that he was attached to the Sixth Division after leaving for desert maneuvers on November 15, 1942, up to January 24, 1943; that he was transferred to Fort Leonard Wood on May 5, 1941; that when he was stationed at Fort Leonard Wood he did not make an effort to establish a residence there at that time; that he first determined to make that his residence when told he did not have a residence in Arkansas; that he secured a Missouri driver's license on June 6, 1941 that at that time he had established a residence in Missouri; that he continued to reside there at Fort Leonard Wood for some time and later attempted to establish a residence in Arkansas and thought he did; that he was informed on April 28th or 29th, 1942, that the Supreme Court of Arkansas had denied him a divorce; that he was stationed all that time at Fort Leonard Wood and had a residence there; that afterwards in June or July, he came to Jefferson County and stopped at the Golden Rule Hotel near Festus, about 150 miles from Fort Leonard Wood; that he maintained a room there for some two or three months, at least until the trial of the divorce case; that he was still stationed there at the army post at Fort Leonard Wood; that when he rented the room at the Golden Rule Hotel he did it with the intention of establishing a residence in Jefferson County; that his petition for a divorce was sent to him, and he subscribed and swore to it before a notary public in Rolla, in Phelps County; that Fort Leonard Wood was about thirty-five miles from Rolla; that he had been in continuous military service of the United States since being called to the army on December 9, 1940; that he attempted to establish a residence in Missouri when he got his driver's license; that he attempted to establish a residence in Jefferson County after he got information of the decision of the Supreme Court of Arkansas; that at the time of the trial in the Chancery Court of Arkansas, on ...