Boudinier v. Boudinier

• Decision Date: 05 May 1947
• Citation: 203 S.W.2d 89,240 Mo.App. 278
• Parties: Rosemary Boudinier, Respondent v. Thornton O. Boudinier, Appellant
• Court: Kansas Court of Appeals

203 S.W.2d 89

240 Mo.App. 278

Rosemary Boudinier, Respondent v. Thornton O. Boudinier, Appellant

Court of Appeals of Missouri, Kansas City

May 5, 1947

Delivered

Appeal from Circuit Court of Jackson County; Hon. James W. Broaddus Judge.

Reversed & Remanded in Part, Affirmed in Part.

Homer A. Cope and Walter A. Raymond for appellant.

This being an appeal by defendant from a decree of divorce to plaintiff and the dismissal of defendant's cross-bill the case is triable de novo here as in equity. It is the duty of this court to review the evidence and make its own findings in accordance with the very right and justice of the matters in question. Kistner v. Kistner, 89 S.W.2d 106; Bowzer v. Bowzer, 236 Mo.App. 514, 155 S.W.2d 530; Ridge v. Ridge, 165 S.W.2d 294. The court erred to the great prejudice of defendant in refusing to permit defendant's expert witness, Dr. Gerald W. Barry, to state, in answer to a hypothetical question, that in his opinion the child, Rosalie Marie Boudinier, was conceived in April, 1943, when such evidence was competent and relevant to prove defendant's charge of adultery and should have been admitted and considered by the court. State v. Drummins, 274 Mo. 632, 204 S.W. 271; Francis v. Terminal R. Assn. of St. Louis, 193 S.W.2d 909; Ritayik v. Ritayik, 202 Mo.App. 74, 213 S.W. 883; 31 C. J. S., p. 666, Sec. 79. The testimony sought to be elicited from Dr. Barry by this hypothetical question was competent to prove the charge of adultery, in any event, and being admissible for that purpose its exclusion was not justified and constitutes reversible error. Neal v. Caldwell, 326 Mo. 146, 34 S.W.2d 104; State ex rel. K. C. Pub. Serv. Co. v. Shain, 345 Mo. 543, 134 S.W.2d 58; State ex rel. Shartel v. Trimble, 333 Mo. 888, 63 S.W.2d 37; Orf v. Ostmann, 170 S.W.2d 941, 945; 2 C. J. S., p. 487, Sec. 20c; 2 C. J., p. 24, Sec. 50. Defendant produced clear and convincing proof he did not have access to plaintiff at the time conception of the child would have occurred under normal conditions and without extending that period to the very limit of possibility. The court erred to the prejudice of defendant in ruling that upon proof of possibility a presumption of legitimacy could not be rebutted by proof of the facts. Under the law of Missouri upon rebutting that presumption by clear and convincing proof as in this case, defendant was entitled to prevail. Stripe v. Meffert, 287 Mo. 366, 229 S.W. 762; Bower v. Graham, 285 Mo. 151, 225 S.W. 978; Drake v. Milton Hospital Assoc., 266 Mo. 1, 178 S.W. 462; In re Findlay, 253 New York 11, 170 N.E. 471; Altomere v. Altomere, 63 N.Y.S. (2d) 71; Nolting v. Holt, 113 Kan. 495, 215 P. 281, 31 A. L. R. 1117; Commonwealth v. Kitchen, 11 N.E.2d 482; In re McNamara, 181 Cal. 82, 183 P. 552, 7 A. L. R. 313 (l. c. 319); Needham v. Needham, 299 S.W. 832. The court erred in granting plaintiff a divorce when under the evidence she is not the innocent and injured party so as to be legally entitled to a divorce. Speiser v. Speiser, 188 Mo.App. 328, 175 S.W. 122; Miles v. Miles, 54 S.W.2d 741. The court erred and abused his judicial discretion in refusing to grant defendant a new trial because of the newly discovered evidence. Gallener v. Daris, 20 S.W.2d 167; In re Reichelt's Estate, 179 S.W.2d 119.

Louis L. Kirchner for respondent.

On an appeal from a decree of divorce to plaintiff and dismissal of defendant's cross-petition, the case being tried without a jury, the appellate court shall review the case upon both the law and the evidence as in suits of an equitable nature, but shall not set aside the judgment unless clearly erroneous, due regard being given to the opportunity of the trial court to judge of the credibility of the witnesses. Section 114 (d), General Code of Civil Procedure, Laws of Missouri, 1943, page 353 (l. c. 388) Mo. R. S. A., Sec. 847.114). Crawford v. Arends, 176 S.W.2d 1 (l. c. 3). Compare Rule 52 (a), Federal Practice and Procedure Act. United States v. Aluminum Co. of America, 2 F.R.D. 224, 231, 235. The objection to the hypothetical question propounded to defendant's expert witness, Dr. Gerald W. Barry was properly sustained. Section 95, Chapter III, Jones on Evidence, 4th Edition, Volume I, page 165. Ash v. Modern Sand & Gravel Company, 122 S.W.2d 45. Rule 21, Lawson on Presumptive Evidence, page 140. Stripe v. Meffert, 287 Mo. 366, 229 S.W. 762. Francis v. Terminal Railroad Association of St. Louis, 193 S.W.2d 909. Even though the answer to be elicited from Dr. Barry, defendant's expert witness may have been competent in connection with defendant's allegation and charge against plaintiff of adultery, it is the only iota of evidence in that respect and does not corroborate or substantiate any other evidence and under Section 114 of the General Code of Civil Procedure, the appellate court shall consider it for the purpose offered only, since it was duly preserved, if this court believes such evidence admissible. Allen v. American Life & Accident Ins. Co., 83 S.W.2d 192; Hunt v. Armour & Company, 136 S.W.2d 312; Adger v. Ackerman, 115 F. 124; Bunel v. O'Day, 125 F. 303. Appellant produced no proof of nonaccess within the limits of the period of gestation as shown by the testimony of the medical experts produced by both appellant and respondent. In re Findlay, 253 N.Y. 1, 170 N.E. 471. Commissioner of Public Welfare of City of N. Y. v. Koehler, 284 N.Y. 260; In re Barthel's Estate, 177 N.Y.S. 565. Re McNamara, 181 Cal. 82, 183 P. 552, 7 A. L. R. 313. Jackson v. Phalen, 140 S.W. 879. Needham v. Needham, 299 S.W. 832. 10 C. J. S. 18, Par. 3b. Under all the evidence and the opportunity of the trial court to judge the credibility of the witnesses, the plaintiff is the innocent and injured party and is legally entitled to a divorce. Andris v. Andris, 125 S.W.2d 38; Milster v. Milster, 200 Mo.App. 603, 209 S.W. 620. There was no newly discovered evidence worthy of belief which could not have been produced at the trial. McAdams v. McAdams, 267 S.W. 428; McKnight v. Batrick, 49 S.W.2d 277; Marckley v. Marckley, 189 S.W.2d 8.

Boyer, C. Sperry, C., concurs.

OPINION

BOYER

This case presents another deplorable marital wreck with its genesis and consummation accomplished in the dramatic period of war. The defendant husband appeals from a decree dismissing his cross petition and which awarded plaintiff a decree of divorce and the custody of a child which the decree says was born of the marriage relation. Plaintiff was accorded judgment for the support and maintenance of said child in the sum of $ 25 a month, together with a stated amount for an attorney's fee, suit money, and costs. From the pleadings and the evidence the paternity of the child in question became the paramount issue in the case.

Plaintiff's petition alleged that she and defendant were lawfully married in Cheyenne on February 13, 1943; that they lived together as husband and wife until March 21, 1943, when the defendant as a member of the Armed Forces of the United States was transferred; that in July 1943, defendant spent his furlough with plaintiff in Kansas City where she was then living; that thereafter he became cold and indifferent toward the plaintiff, refused to correspond with her, stated that he did not care to live with her longer, and wanted a divorce. It was further alleged that defendant deserted plaintiff for a space of one year and had offered her indignities; that he was jealous and made numerous untrue accusations against plaintiff; stated that he did not wish to live with her and wanted her to get a divorce; that there was born of the marriage one daughter, Rosalie Marie Boudinier, on January 30, 1944. Jurisdictional facts of residence in Jackson County, Missouri, were set forth and plaintiff prayed for a divorce, alimony, custody, care and control of the infant child, and for its support and maintenance.

Defendant's amended answer and cross petition admitted the marriage and separation and plaintiff's residence as alleged. The answer denied the other allegations of the petition and specifically denied that defendant was father of the child, and alleged that he was the innocent and injured party; that plaintiff had offered him indignities rendering his condition intolerable in that while he was in the United States Army, she improperly associated with other men and as a result thereof gave birth to the child named in plaintiff's petition; that plaintiff was guilty of adultery; that there were no children born of the marriage between plaintiff and defendant; that the defendant was a resident of Kansas City, Jackson County, Missouri, for more than one whole year; that he had been a member of the Armed Forces, but at the time of filing of the amended answer and cross petition he was not in any branch of the military service, and prayed that a divorce be granted him on his cross petition.

Plaintiff's answer to defendant's cross petition was in the nature of a general denial.

When the picture of this case is unreeled by the evidence there is shown a rather salacious and sordid story. However unpleasant it may be, it appears necessary to state somewhat in detail the testimony of the various witnesses offered by the respective parties. As a preliminary to a statement of the conflicting evidence the following facts appear to be undisputed.

At the time of trial plaintiff was 21 years of age and defendant was 34. The marriage occurred in Cheyenne, Wyoming, February 13 1943. The parties were then 18 and 31 years of age respectively. Defendant was in the army and stationed at Fort Warren near Cheyenne. By mutual agreement, plaintiff went from Kansas City to Cheyenne to visit defendant February 1, 1943. An arrangement had been made for her to live with Mr. and Mrs. James Pasley, uncle...