Butler v. Butler

• Decision Date: 10 May 1923
• Docket Number: No. 3307.,3307.
• Parties: BUTLER v. BUTLER.
• Court: Missouri Court of Appeals

252 S.W. 734

BUTLER v. BUTLER.

No. 3307.

Springfield Court of Appeals, Missouri.

May 10, 1923.

Rehearing Denied June 8, 1923.

Error to Circuit Court, Howell County; E. P. Dorris, Judge.

Suit by W. W. Butler against Cornelia Butler. Judgment modifying a decree respecting alimony, and plaintiff brings error. Affirmed.

L. O. Nieder, of Willow Springs, and O. L. Munger, of Piedmont, for plaintiff in error.

Welker & Mulloy, of Poplar Bluff, for defendant in error.

BRADLEY, J.

Plaintiff in error, who was plaintiff below, sued out this writ to review a judgment modifying a decree respecting alimony. We will refer to the parties as plaintiff and defendant. Plaintiff filed his petition in the Howell county circuit court for divorce and custody of a minor daughter born of the marriage. Defendant filed crossbill, and on trial was granted a divorce from plaintiff, together with the custody of the minor daughter and alimony. The decree was rendered on August 3, 1922. Next day plaintiff filed his motion for new trial. The motion, at the same term, on September 26th, was overruled. On September 25th defendant filed her motion to modify the decree respecting alimony. This motion, on September 26th, the same day motion for new trial was overruled, was sustained, and the judgment awarding alimony was modified. No further steps were taken until October 17th thereafter. On October 17th plaintiff filed his application in this court for writ of error to review a judgment "in favor of defendant Cornelia Butler for the sum of $2,500 and attorney's fees $200." The writ issued, and we have before us the petition, cross-bill, original and modified decree.

There is nothing for us to consider except the question of jurisdiction to grant defendant a divorce on her cross-bill. The court found that plaintiff was not entitled to a divorce and dismissed his petition. If there was no jurisdiction to grant defendant a divorce on her cross-bill, then there was no authority for awarding permanent alimony. Under the law permanent alimony is not authorized except as an incident to a decree of divorce in the wife's favor. McIntire v. McIntire, 80 Mo. 470. Section 1803, R. S. 1919, provides that in divorce suits a defendant may set forth and charge in the answer any of the facts specified in the statute as grounds for divorce, and that a divorce may be granted to a defendant if the facts set up in the answer are sufficient and are established. This section further provides that when a defendant is seeking a divorce on the answer, which is commonly called a cross-bill in our practice, the same must be sworn to. Thus we see that a cross-bill in divorce is considered in the same light and is governed by the same rules of law as affect and govern the petition. Section 1804, R. S. 1919, provides that no person shall be entitled to a divorce "who has not resided within the state, one whole year next before filing of the petition, unless the offense or injury complained of was committed within this state, or whilst one or both of the parties resided within this state." The last-mentioned section says that no Person shall be entitled to a divorce unless, etc. Therefore it applies to a defendant seeking a divorce on a cross-bill. Unless it is alleged in the cross-bill that defendant has resided in the state one whole year next before the filing of the cross-bill, or that the offenses charged in the cross-bill occurred within the state, or that they occurred while one or both parties resided within the state, the cross-bill fails to state sufficient facts to confer jurisdiction, and is fatally defective. In other words, absent all these jurisdictional allegations, the cross-bill states no cause of action of which the court has jurisdiction. Gordon v., Gordon, 128 Mo. App. 710, 107 S. W. 410, and cases there cited.

Defendant sets up several grounds for divorce in her cross-bill, but nowhere is it alleged that she had resided in this state one whole year next before the filing of the cross-bill. One of the grounds set up is that in March, 1916, "while plaintiff and defendant were living as man and wife at Poplar Bluff, Butler county, Mo., the plaintiff herein without cause went to Walnut Ridge, Lawrence county, Ark., and there by fraudulent representations to the court instituted a suit against this defendant" for divorce. Defendant's cross-bill then goes on to allege that plaintiff in the Arkansas case made many false charges against her, among which was one attacking her chastity. She alleges in effect that she was tricked into going to Walnut Ridge, Ark., when service was had upon her; that when she was served with process in the Arkansas case she informed plaintiff she would contest, and that thereafter she was falsely informed that the cause was dismissed; that said cause was not dismissed, but that plaintiff by deceiving her and the court obtained a decree of divorce in the Arkansas court. It is further alleged in defendant's cross-bill that on her petition the Arkansas decree was set aside on the ground that...