Bradshaw v. Bradshaw

• Decision Date: 21 December 1942
• Docket Number: No. 6416.,6416.
• Citation: 166 S.W.2d 805
• Parties: BRADSHAW v. BRADSHAW.
• Court: Missouri Court of Appeals

166 S.W.2d 805

BRADSHAW v. BRADSHAW.

No. 6416.

Springfield Court of Appeals. Missouri.

December 21, 1942.

Appeal from Circuit Court, Laclede County; William E. Barton, Judge.

"Not to be Published in State Reports".

Suit for divorce by W. N. Bradshaw against Lois Bradshaw. From an order and judgment sustaining a plea in abatement, the plaintiff appeals.

Judgment reversed, and cause remanded.

Bradshaw & Fields and Mary Alice Hunt, all of Lebanon, for appellant.

No appearance for respondent.

FULBRIGHT, Judge.

This is an appeal from the order and judgment of the trial court sustaining a Plea in Abatement in a divorce suit.

The petition is in conventional form duly verified by plaintiff, and alleges among other things that plaintiff "is now a resident of Laclede County in this state and has resided within this state one whole year next before the filing of this petition."

The Plea in Abatement states:

"* * * that plaintiff ought not to have, nor maintain this action in this court for the following reasons:

"1. That at the time of the commencement of said action the plaintiff was not a resident of Laclede County, Missouri.

"2. That at the time of the commencement of said action the plaintiff was not a resident of the state of Missouri.

"3. That at the time of the commencement of said action the plaintiff was a resident of the State of California.

"4. That the plaintiff has not resided in the state of Missouri for one year next before the filing of his petition herein.

"5. That the plaintiff was a resident of the state of California for more than two years immediately prior to March 26, 1942, and was not during any of said period of time a resident of the County of Laclede, State of Missouri, nor of the State of Missouri.

"6. That during said last mentioned period of time, plaintiff registered to vote and voted in the State of California, and gave as his residence the City of San Diego, State of California.

"7. That the plaintiff registered for the U. S. Military Service at San Diego, California, and gave his place of residence as being at San Diego, California.

"Under the provisions of Section 1517, R.S.Mo.1939, Mo.R.S.A. § 1517, the plaintiff in a divorce action is required to have resided in this state for "one whole year next before filing of the petition."

A Plea in Abatement is in the nature of an affirmative defense and the burden of proof rests upon the defendant. Wissmann v. Pearline, 235 Mo.App. 314, 135 S.W.2d 1; Rucker v. Alton R. Co., 343 Mo. 929, 123 S.W.2d 24.

Plaintiff was the sole witness called by defendant in her effort to establish the allegations in her plea in abatement. From this testimony we gather the following facts: Plaintiff was born and reared on a farm in Laclede County and is now 28 years of age. He made his home in said county all his life; is a pipe-fitter by trade and engaged in construction work. He was married in 1932 and has three children. In 1937 he went to California and since that time has periodically engaged in construction work in California and Arizona. This work took him from place to place and when not so engaged he returned to his home in Laclede County, thus spending perhaps 50% of his time in said county. He lived for a time in San Diego, California with his wife and children, during which time they occupied a duplex; that his wife would not stay at home and look after the children, and finally, on March 15, 1941, he brought said children back to his father's home in Laclede County where he has since maintained them.

He voted in Laclede County in 1934, 1935 and 1936. In 1937 he registered to vote at San Diego, California, but on learning that by so doing he would lose his residence in Missouri he decided not to vote. Thereafter, he has never registered in California and has never voted anywhere since 1936. Concerning his registering to vote we quote from the record:

"Q. (By Mr. Bradshaw) Now, you mentioned a while ago that you registered one time in the State of California somewhere. Now, tell the Court if you voted after you registered. * * * A. I did not vote.

"Q. Alright, now tell the court why you didn't vote. A. Well, the reason I didn't vote, I went and registered and after I registered I found out if I went ahead and voted it would be considered a legal residence there and I always wanted to maintain my residence here, and that is the reason I didn't vote."

Plaintiff registered under the draft for military service at San Diego, in 1940, and he testified as follows:

"Q. And you gave your residence as San Diego at that time? A. Well, naturally, because when I was registering I didn't have a chance to...