Caffey v. Caffey

• Decision Date: 05 July 1938
• Docket Number: No. 5946.,5946.
• Citation: 118 S.W.2d 1047
• Parties: CAFFEY v. CAFFEY.
• Court: Missouri Court of Appeals

118 S.W.2d 1047

CAFFEY v. CAFFEY.

No. 5946.

Springfield Court of Appeals. Missouri.

July 5, 1938.

Appeal from Circuit Court, Greene County; Warren L. White, Judge.

"Not to be published in State Reports."

Divorce action by Luther L. Caffey against Elva Caffey, wherein the defendant filed a cross-bill for divorce. From a judgment granting plaintiff a divorce, defendant appeals.

Reversed, and plaintiff's petition and defendant's cross-bill dismissed.

Hamlin & Hamlin, of Springfield, for appellant.

Fred A. Moon, of Springfield, for respondent.

ALLEN, Presiding Judge.

This is an action for divorce by the husband against the wife. The cause was filed in the Circuit Court of Greene County, returnable to the September Term, 1937. Defendant filed her answer and cross bill and the court on the 23rd day of October, 1937, heard some of the evidence in the cause, then continued same until November 30, 1937, on which date the court rendered judgment for plaintiff, dissolving the bonds of matrimony contracted between plaintiff and defendant and decreed that plaintiff be restored to all the rights and privileges of an unmarried person and that defendant pay all costs of this suit.

Defendant filed her motion for a new trial, which was overruled, and the cause comes to us on appeal by defendant.

Plaintiff has not furnished us with any briefs in this cause. Defendant has filed abstract of the record and brief, and urges one assignment of error: "That the court erred in overruling defendant's motion for a new trial; that the allegations in each paragraph of said motion were supported by the evidence and the law."

The petition after alleging the date of the marriage and the separation of plaintiff and defendant, and the usual allegations in like petitions, alleged as grounds for divorce "that defendant wholly disregarding her duties as the wife of plaintiff has offered such indignities toward him as to render his condition in life intolerable in this, that soon after the marriage aforesaid defendant attempted to obtain all of plaintiff's property in her name, that she was jealous without cause, that she had an ungovernable temper and was extremely selfish, that she was extravagant and quarrelsome, and on one occasion called the plaintiff a liar."

Defendant's answer admitted the marriage of plaintiff and defendant, but denied each and every other allegation; and for her cross bill, alleged that defendant offered her such indignities as to render her life intolerable in this:

"That prior to the marriage there was a distinct understanding and agreement between the plaintiff and herself that after their marriage plaintiff and defendant would live alone in a home, with the exception of an unmarried daughter that was living with the plaintiff at the time of their marriage. That they discussed the question of other relatives of plaintiff living with them, to-wit, son-in-law and grandchildren, and both agreed that they would not live in the home with plaintiff and defendant. That plaintiff agreed to prepare a suitable home for them and in consideration of that agreement plaintiff and defendant lived with defendant's mother for five months while plaintiff's property on Benton Avenue in Springfield, Missouri was being repaired; that after it was repaired plaintiff permitted his son-in-law and his family to move into and occupy an apartment upstairs in said building and in order for them to have access to their apartment it was necessary for them to pass through the living room of plaintiff and defendant; and finally on the 20th day of April, 1937, against the protest of defendant, plaintiff brought into their home a grandson, whose father is an able bodied man, has a wife and is employed at a good salary, and when defendant protested plaintiff became angry and said she could go, that he was going to keep his grandchild. That plaintiff had a bad temper, would become angry and accuse defendant of things that were false, to-wit, of being a hypocrite; that plaintiff did not provide anything for defendant with which she could purchase clothing, that he purchased nothing in that line for her except some small articles in the way of hosiery and underwear. That from his actions she became thoroughly convinced that he had no love or affection for her, that his affections were for his children and grandchildren, in fact told her at one time that the better she would treat his children the better he would treat her. That on the 30th day of April, 1937, plaintiff became angry and refused to occupy the bed with defendant.

"Defendant says she is willing to renew marital relations with the plaintiff if plaintiff will provide a home for themselves and not insist on keeping his son-in-law and his family and his grandchildren in their home. She says that while she is willing to renew marital relations, yet if the Court, from the evidence believes that a decree of divorce should be granted she prays the Court to grant her the decree because she believes that she is the innocent and injured party.

"She says that she is wholly without means of support, having no income, and that the plaintiff is seized of property of the relative value of eight thousand dollars and she signed the note and deed of trust to procure said amount at the instance and request of plaintiff and that two thousand dollars of said amount was used in repairing the building, and plaintiff had the benefit of the remainder. She further says that the plaintiff is earning a good salary, and is, and has been for a number of years, employed by the Frisco Railway Company, drawing from $180.00 to $200.00 per month.

"She says she is without the means to defend this action and she prays the court to grant her a divorce, allowing her such sum as alimony as the court may think proper, and in addition thereto allow her a reasonable sum as attorney's fees for the defense of this action; and restore her maiden name, to-wit, Mayfield; and make any other orders in the premises as to the court may seem right and proper."

Although a divorce proceeding is a statutory action and primarily one at law, Mo.St.Ann. § 1350 et seq., p. 1552 et seq., it is nevertheless the right and duty of an appellate court, as in equity cases, to review the evidence for itself. Chapman v. Chapman, 269 Mo. 663, 192 S.W. 448; Klenk v. Klenk, Mo.App., 282 S.W. 153; Methudy v. Methudy, Mo.App., 238 S.W 562; Dennis v. Dennis, Mo.App., 289 S.W. 16; Capps v. Capps, Mo.App., 65 S.W.2d 661; Barth v. Barth, 168 Mo.App. 423, 151 S.W. 769. In so doing, when the evidence is conflicting and close the appellate court will defer largely to the trial judge, who had the parties and witnesses personally before him, and on such account afforded a favorable opportunity to determine their credibility; however, as we have stated above the appellate court must examine the evidence and make its own findings; and it will not be bound by the trial court's conclusions, if the same are found to be erroneous. Bassett v. Bassett, Mo.Sup., 280 S.W. 430; Cherry v. Cherry, 258 Mo. 391, 167 S.W. 539; Ferguson v. Ferguson, Mo.App., 279 S.W. 189; Klenk v. Klenk, supra; Becherer v. Becherer, Mo.App., 299 S.W. 61.

Plaintiff and defendant were the only persons who testified at the trial of the cause. Both sides offered character witnesses but it was admitted that the character of both parties was good and these witnesses did not testify.

The evidence showed that plaintiff was fifty-four years of age, and had lived in Greene County for about fifty years. That defendant was forty-three years of age. This was the plaintiff's third marriage and his second divorce proceeding. His first wife was deceased and he was divorced from his second wife. It was the defendant's first marriage. Plaintiff at the time of the trial was and had been employed by the Frisco Railway Company, in the coach shops at Springfield, for about thirty-six years. He stated that he worked by the piece at the shops and got from 86 to 96 cents per hour. Defendant alleged in her cross bill that plaintiff drew from $180 to $200 per month. Before their marriage plaintiff bought defendant a diamond ring which cost $277.50 and an Electrolux sweeper from her brother-in-law (which defendant states she did not ask him to buy for her) at a cost of $79; and a wedding ring, when they were married, for which he paid $12.50. It seemed to be the purchase of these articles that plaintiff referred to when he said defendant was extravagant and that she ran him in debt. They were married July 25, 1936 at Jefferson City, and after their marriage lived at the home of defendant's mother for about five months while plaintiff's home, located at 1415 Benton...