Carder v. Carder

• Decision Date: 22 May 1933
• Parties: FERN HAZEL CARDER, DEFENDANT IN ERROR, v. JOHN F. CARDER, PLAINTIFF IN ERROR
• Court: Kansas Court of Appeals

60 S.W.2d 706

227 Mo.App. 1005

FERN HAZEL CARDER, DEFENDANT IN ERROR, v. JOHN F. CARDER, PLAINTIFF IN ERROR

Court of Appeals of Missouri, Kansas City

May 22, 1933

Error to Circuit Court of Vernon County.--Hon. Charles A Hendricks, Judge.

AFFIRMED.

Judgment affirmed.

A. E Elliott for defendant in error.

Howell Heck for plaintiff in error.

OPINION

BLAND, J.

This is an appeal from the action of the court in sustaining a motion for alimony pendente lite in a maintenance proceeding.

The facts, in so far as the record shows, are as follows:

Plaintiff and defendant are residents of Bates county. They were married on June 12, 1921, and resided together as husband and wife until January 30, 1931, when the plaintiff left the defendant. There was born of the marriage one child, a girl, who was ten years of age at the time of the trial.

The suit is based upon indignities. In this regard the petition alleges as follows:

"That defendant has cursed and abused plaintiff, and called her vile, indecent and insulting names; that on or about the 15th day of November, 1930, defendant struck her, and choked her and kicked her, making it necessary and she was treated by a physician on account of the wounds and injury that he inflicted upon her; that again on or about the 28th day of January, 1931, defendant assaulted and struck plaintiff in the face, and she was driven from her home on account of his barbarous and inhuman treatment of her; that on the 17th day of October, 1931, and while both plaintiff and defendant were residents of Bates county, Missouri, defendant filed a divorce proceeding against her in the Circuit Court of Jackson County, Missouri, and by fraud procured and induced a woman, who is unknown to plaintiff, to impersonate and represent herself to be the plaintiff, and caused the sheriff of said county to serve process of summons upon such fictitious person and to make a false and untrue return thereon, and that on account of said fraud being practiced upon plaintiff, the court and sheriff of said county, defendant herein, was cited, tried and convicted of contempt of court and fined fifty dollars and sentenced to ninety days in jail."

It is insisted by the defendant that the court erred in granting temporary alimony in this case for the reason that plaintiff did not make a prima-facie showing that she was entitled to the relief asked for in her petition; that there are three things required to be established in order to maintain a suit for maintenance: (1st) Cessation without good cause from cohabitation; (2d) Intention on the deserter's part not to resume the same; (3rd) Absence of the complainant's consent to the separation. This is true as to maintenance suits based upon abandonment by the husband and failure to support. [McPheeters v. McPheeters, 207 Mo.App. 634, 639, 227 S.W. 872.] However, where the husband has been guilty of such conduct as to render the wife's condition unendurable in his home, she may leave him without forfeiting her right to an action for maintenance against him, such conduct constituting abandonment on the part of the husband, and not the wife. [Girdner v. Girdner, 230 S.W. 382; Elsey v. Elsey, 297 S.W. 978; McGrady v. McGrady, 48 Mo.App. 668; Kurz v. Kurz, 119 Mo.App. 53, 96 S.W. 242.]

So far as the record presented here by the defendant shows, there was little effort made at the trial to show that plaintiff prima facie had grounds for a maintenance suit, but plaintiff calls our attention to the fact that all of the evidence has not been brought here by the defendant. An examination of the points raised by defendant shows, on their face, that all of the testimony is not brought here, as some points are raised in reference to matters wholly omitted from the record. If defendant desired us to pass upon the question as to whether plaintiff made out a prima-facie case he should have brought here all of the testimony. Having failed to do this we cannot consider the point. [Davies v. Boyers, 140 Mo.App. 593, 120 S.W. 631; Gooden v. Modern Woodmen of Am., 194 Mo.App. 666, 189 S.W. 394; Southern Surety Co. v. York, 218 Mo.App. 629, 267 S.W. 44.]

It is insisted that there is no testimony that plaintiff made any demand, prior to the institution of this suit, upon the defendant for any greater amount of support than he had been giving her. Here again, if defendant desired us to consider this point he should have brought here all of the testimony. However, there is sufficient in the record to show that there is no merit in this contention. While the evidence shows that defendant was paying the grocery bills at the time of the institution of the suit, and some of the other bills, it further shows that plaintiff and the child could not live on the contributions he made. Plaintiff testified: "I have been buying my clothes with just what little bit I could make working in homes--working in peoples' kitchens."

The case of Bingham v. Bingham, 29 S.W.2d 99, cited by defendant is not in point. In that case the court held, l. c. 101:

"While the court has the power to examine the question of the sufficiency of the maintenance, nevertheless, where the wife has been receiving substantial support from her husband, more than sufficient to supply her necessary wants, the question of a timely demand by her for a larger allowance is to be considered in determining the sufficiency of the allowance and the equities of the suit." (Italics ours.)

The court further stated that, under such circumstances, if the wife desired additional support she should have acquainted her husband of her desire before filing the maintenance suit. The court said, l. c. 102:

"Without a complaint or demand on her part for a larger allowance, so as to give defendant an opportunity to increase it, where the allowance and payments for her benefit afford her a substantial living in the style in which she was accustomed to live, we do not think that defendant refused or neglected to maintain and provide for plaintiff."

The facts in that case are not similar to those in the case at bar. Here the support afforded by defendant was not adequate. The facts show that defendant is vice-president of a coal company and receives a salary of $ 440 per month. There was no justification in his furnishing his wife with such inadequate funds...