Blessing v. Blessing

• Decision Date: 06 July 1976
• Docket Number: No. 36961,36961
• Citation: Blessing v. Blessing, 539 S.W.2d 699 (Mo. App. 1976)
• Parties: Azlee BLESSING, Plaintiff-Respondent, v. Thurman J. BLESSING, Defendant-Appellant. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 699

539 S.W.2d 699

Azlee BLESSING, Plaintiff-Respondent, v.Thurman J. BLESSING, Defendant-Appellant.

No. 36961.

Missouri Court of Appeals, St. Louis District, Division Three.

July 6, 1976.

William R. Dorsey, Dorsey & Dorsey, Clayton, for defendant-appellant.

Fred A. Gossom, Theodore, D. Ponfil and Michael S. Moran, Blumenfeld, Kalishman, Marx, Tureen & Paster, P.C., Clayton, for plaintiff-respondent.

SIMEONE, Presiding Judge.

This is an appeal by defendant-appellant, Mr. Thurman J. Blessing, from a judgment entered by the circuit court of St. Louis County on January 21, 1975, which dissolved the marriage of the plaintiff-respondent, Mrs. Azlee Blessing, and Thurman Blessing and which awarded the wife certain 'marital property.'This action was filed by Mrs. Blessing prior to the new dissolution law but was heard after the new law went into effect on January 1, 1974.The decree dissolving the marriage and dividing the marital property was entered after the effective date of the new law.For reasons hereinafter stated, we reverse the judgment and remand the cause for further proceedings.

This action was begun by Mrs. Blessing by the filing of a petition for 'divorce' on August 3, 1972.An amended petition was filed on August 28, 1973, in which Mrs. Blessing alleged that the parties were married in 1969, separated in 1972 and alleged general indignities.The petition prayed (1) that the marriage be dissolved, (2) for alimony, both temporary and permanent, or in gross, (3) for suit money, court costs and attorney's fees, and (4) that 'the Court will make such other and further orders, judgments and decrees in the premises as the Court shall find to be just and equitable.'In due time, an answer was filed admitting certain of the allegations and denying the general indignities.

From the time of the original filing of the petition, innumerable motions were filed and heard, and many continuances were granted, although the record does not show at whose behest.Income and expense statements were filed.Interrogatories were filed and answered.Motions for alimony 'pdl' were filed and continued.On one occasion in 1974, the cause was continued because of the illness of the trial judge.

The cause was orginally set for trial October 30, 1972, but the cause was continued on May 5, 1974, October 8, 1974, and on December 2, 1974.On December 2, 1974, the cause was again continued and reset for trial on January 16 and 17, 1975.¹

On January 6, 1975, some ten days prior to the setting of the cause, the trial judge received a telephone call from Mr. Blessing's former attorney seeking leave to withdraw from the case, since he had been discharged by Mr. Blessing.Mr. Blessing was present in the attorney's office during the conversation.The court permitted the withdrawal but informed the attorney to advise Mr. Blessing that the cause had been specially set for January 16 and 17 and that the withdrawal would not entitle him to a continuance.On January 6, 1975, Mr. Blessing's attorney wrote to Mr. Blessing informing him that he had withdrawn and specifically informed him that

". . .

'Your case is set specifically in Division #12 of the Circuit Court of St. Louis County . . . on January 16, 1975 for trial. . . .During my conversation with the Judge concerning my withdrawal as your attorney, (the judge) specifically requested that you be notified that irrespective of my withdrawing, your case would be heard by the Court at the above specified time and that my withdrawing would not entitle you to a continuance of the case."

On the afternoon of January 15, 1975, the day before the trial was to begin, the judge received a letter from Mr. Blessing.The letter read as follows:

"Due to complications involving a recent accident, I feel that my present physical condition makes me unable to appear before you in the Case of Blessing vs. Blessing presently scheduled for January 16 and 17, 1975.You may verify my present physical condition with my physician . . ..

'In order to prevent an unnecessary expense and inconvenience to all of the people involved; I respectfully request a continuance of this case to a date after February 15, 1975, which is my mext scheduled appointment with my physician.

'I have advised the attorney (for Mrs. Blessing) of my actions."

The letter was signed, sworn to and notarized.No statement or certificate from a physician accompanied the letter.

On the morning of the trial, January 16, 1975, Mr. Blessing did not appear, and no attorney appeared for him.Mrs. Blessing and her attorney, however, were present.For the record, the trial court explained the telephone call from Mr. Blessing's attorney and the letter he received from Mr. Blessing the day before and indicated '(t)his is not a continuance application in accordance with the Statutes, and if it is a continuance application by Mr. Blessing, it is denied.We will proceed.'

The court proceeded to hear the testimony of Mrs. Blessing.She testified as to the various indignities, and testified as to the ownership of certain 'marital property,' including stocks and a mobile home.She testified that Mr. Blessing owned several hundred shares of stock in a particular company which was acquired 'in the course of the marriage . . ..'She requested the court to award her the mobile home which was in joint names and one-half of the stock.She testified that she would waive any claim for maintenance in the event the court'should make a distribution of the marital property . . .'.She admitted that the marriage was 'irretrievably broken.'

On January 21, 1975, the court entered its decree dissolving the marriage and awarded the petitioner 414 shares of stock or one half of those allegedly acquired by Mr Blessing during the marriage, the mobile home and set apart to her as her sole property the shares of stock she owned in her own name.The court further ordered Mr. Blessing to execute the necessary documents to effect the transfers.

Within a week, present counsel for Mr. Blessing filed a motion for new trial, alleging that the court erred in (1) denying the written request and affidavit for a continuance because Mr. Blessing was physically incapacitated and unable to attend the trial, (2) depriving him of his right to a trial and to present his evidence since he had a meritorious defense, (3) depriving him of a trial 'in violation of his constitutional rights,'(4) dividing the marital property because on the 'face of the pleadings'plaintiff was not entitled to such relief, (5) finding that the shares of stock were marital property because the certificates would show they were acquired prior to the date of the marriage, and (6) failing to set aside to Mr. Blessing his property, contrary to § 452.330, RSMoSupp.1973.

The motion was vigorously argued and all of the above matters were discussed.However, the motion was overruled, and this appeal was taken.

Appellant, Mr. Blessing, contends here that (1)the court erred in denying the continuance, (2)the court lacked jurisdiction to enter an order awarding the marital property to Mrs. Blessing because her petition did not request such a division, and (3) Mr. Blessing was deprived of his constitutional right to a trial in violation of Article I, Section 10 of the Missouri Constitution.

Our review in this case is governed by Rule 73.01, which directs us to review the case upon both the law and the evidence, giving due regard to the trial court to judge the credibility of the witnesses.If we believe that the trial court erred in its decree it is our duty to enter such judgment as the trial court should have entered.Murray v. Murray, 538 S.W.2d 587, 588(Mo.App.1976);In re Marriage of Powers, 527 S.W.2d 949, 954(Mo.App.1975);Richardson v. Richardson, 524 S.W.2d 149, 151(Mo.App.1975).The trial court's decree is to be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.Murphy v. Carron, 536 S.W.2d 30, 32(Mo. banc 1976).

We reject appellant's contention that the court erred in denying the continuance.While a litigant has a right to be present at his own hearing and the right to attend the trial, the principle is well established that the granting or denial of a continuance, even on the ground of illness, rests within the sound discretion of the trial court.Of course, that discretion must be judicial in nature and not arbitrary, and, although the ruling is reviewable on appeal, every intendment is in favor of the court's ruling.²Denial of a continuance is rarely reversible error.³The trial court has the right to control the docket and the progress of litigation.The grant or denial of a continuance is therefore discretionary.State ex rel. Schaper v. Stussie, 487 S.W.2d 49(Mo.App.1972).

The enforced absence of a party to a cause is not always a reason for a continuance, and whether in a particular case it is a good reason or not is to be determined by the trial court.Riverside Lumber Co. v. Schmidt, 130 Mo.App. 227, 109 S.W. 71, 72(1908);Erhart v. Todd, 325 S.W.2d 750, 753(Mo.1959);Jones v. Jones, 188 Mo.App. 220, 175 S.W. 227, 228(1915).

We find no abuse of discretion under the circumstances of this case.Here, the cause had been reset a number of times, although there is no indication that it was at the request of the defendant, Mr. Blessing.Two specific days had been set aside for the contested trial; no certificate of a physician was attached to the 'affidavit' of Mr. Blessing, cf. Smith v. Smith, supra, 34 S.W. 471; no real 'facts' were stated in the affidavit ⁴ as required by § 510.090andRule 65.03; and no particular facts as to what Mr. Blessing would prove were stated in violation of § 510.100andRule 56.04.⁵A trial judge is under no obligation to seek out a physician to determine whether the party or a witness is suffering...