Broemmer v. Broemmer
| Decision Date | 25 March 1949 |
| Docket Number | No. 27567.,27567. |
| Parties | BROEMMER v. BROEMMER. |
| Court | Missouri Court of Appeals |
Appeal from Cape Girardeau Court of Common Pleas; J. Henry Caruthers, Judge.
"Not to be reported in State Reports."
Action by Margaret J. Broemmer against Howard R. Broemmer, to recover money expended by plaintiff after obtaining a divorce from defendant for support of their minor child. Verdict and judgment for plaintiff and defendant appeals.
Judgment affirmed.
Limbaugh & Limbaugh, of Cape Girardeau, for appellant.
J. Grant Frye and Gerald B. Rowan, both of Cape Girardeau, for respondent.
This suit was instituted in the Cape Girardeau Court of Common Pleas, by the divorced wife of defendant, to recover money expended by her for the support and maintenance of their minor child from August 17, 1945, the date of the divorce, to September 15, 1947, the date of the filing of plaintiff's petition. The trial before the court and a jury resulted in a verdict and judgment in plaintiff's favor for the sum of $1250. Defendant appeals.
The material averments of the petition are that plaintiff and defendant were married on January 2, 1938, and on August 17, 1943, there was born of such marriage their child Howard R. Broemmer, Jr.; that on August 17, 1945, upon petition of plaintiff the parties were divorced in the District Court of the State of New Mexico on constructive service had upon the defendant; that in the divorce decree plaintiff was given care and custody of said child but no monetary allowances were made against the defendant; that since the date of the decree plaintiff has had the exclusive care and custody of the child, and has supported and maintained the child, and defendant has contributed nothing therefor; that the reasonable value of such support is $75 per month, or $1800, for which she asks judgment.
The amended answer admits the marriage and birth of the child; admits the divorce on August 17, 1945; admits that the divorce decree gave plaintiff the care and custody of the child and that no monetary allowance was made against the defendant for the child's support; admits that plaintiff has had the exclusive care and custody of said child, but denies that she has entirely out of her own means supported and maintained the child and that defendant has contributed nothing therefor; denies that defendant has been under the duty to support the child and has failed therein; and denies that $75 is the reasonable value of the monthly care of the child.
As an affirmative defense the amended answer alleges (1) that plaintiff left defendant in June, 1944, and went to Albuquerque, New Mexico, taking the child with her; (2) that plaintiff filed suit for divorce in the Cape Girardeau Court of Common Pleas sometime thereafter and appeared in said court for a hearing of that case in September, 1944; (3) that after being heard in court and deciding that a divorce might not be granted her and before the conclusion of the hearing plaintiff left town in the nighttime, taking the child out of the State of Missouri and out of the jurisdiction of the court, and that such case was never heard; (4) that defendant by telephone and mail and through a visit by his mother attempted to effect a reconciliation with plaintiff and was unsuccessful; (5) that defendant sent his child sums of money from time to time; (6) that plaintiff is more financially able to support the child than is the defendant; (7) that plaintiff felt that the Cape Girardeau Court of Common Pleas was going to rule against her on her suit for divorce and, in contravention of the laws of the State of Missouri and the jurisdiction of the court, she left the State of Missouri in the nighttime, when she could not be stopped, with her child, and obtained a divorce in Albuquerque, New Mexico, well knowing that defendant was unable to resist such action for divorce in the courts of New Mexico because of the expense involved.
In a pretrial conference, on motion of plaintiff, the court ordered stricken out the so-called affirmative defense except paragraph 5 alleging that defendant sent his child sums of money from time to time. The court then ruled that under the pleadings in the case the only defense available to defendant was payment.
The trial then proceeded before the jury.
Plaintiff's counsel read from the deposition of defendant wherein defendant testified that from August 17, 1945, until the day of the taking of the deposition on April 5, 1948, he had not sent any money to either plaintiff or the child.
Plaintiff's testimony by way of deposition was that she was married on December 20, 1947, to Roy E. Craig, with whom she is now living in Albuquerque, New Mexico. That she was first married to defendant on January 2, 1938. A child was born of the marriage between her and defendant on August 17, 1943; that she obtained a decree of divorce from defendant and custody of the child on August 17, 1945, since which time she has lived and had the child with her in New Mexico, and has paid for the support of the child, receiving no money from the defendant; that it has cost her $50 a month to board the child while she worked, she also boarding at the same place as the child; that in addition to the child's board she has paid $50 a month for clothing, doctor bills, drugs and whatever the child needed; that she was compelled to work the entire time; that she is familiar with the costs of living in Albuquerque, and that a child cannot be supported and fed properly for less than $75 a month.
Plaintiff offered in evidence a certified copy of the decree of divorce entered by the District Court of Bernalillo County, New Mexico, from which it appears that the plaintiff was granted a divorce from defendant on August 17, 1945, on the grounds of cruelty, nonsupport, and incompatibility, and was granted the exclusive care, custody and control of the minor child.
Defendant testified that he had sent no money to plaintiff since the decree of divorce. He further testified that he, his mother and stepfather started a laundry 12 years ago at Cape Girardeau in which venture he contributed $2,000, but that he and his wife had since used up this investment so that his present interest in the business is small; that his stepfather has died and he is now operating the business under the supervision of the court; that the laundry is insolvent and owes $17,000 or $18,000; that he has petitioned the court for permission to sell the laundry and is doubtful if there will be any value over and above the debts; that he has no source of income other than the laundry.
The defendant offered proof, which on objection of plaintiff's counsel was refused, as follows:
That plaintiff and defendant were married on January 2, 1938, and lived together until June 29, 1944, when plaintiff left him, taking the child with her, and went to Albuquerque, New Mexico; that shortly thereafter, acting by her attorney, she filed suit against him for divorce in the Cape Girardeau Court of Common Pleas, and that she came to Cape Girardeau for the trial of that case in September, 1944; the case was partially heard, and after an adjournment until the next day, and during the night, plaintiff left the state and took her child with her to New Mexico, and the case was dismissed the next day by her attorney; that thereafter he went to New Mexico and asked her to come back to him and she refused; that his mother went to New Mexico and unsuccessfully tried to effect a reconciliation, and that plaintiff told her she was making good money and didn't want any money and didn't need any money from defendant. That before the divorce he sent sums of money to his wife, and also sent her personal effects and the child's. That...
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