Clark v. Clark
| Decision Date | 02 May 1910 |
| Citation | 128 S.W. 218,143 Mo.App. 350 |
| Parties | B. P. CLARK, Respondent, v. MARY CLARK, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Harrison Circuit Court.--Hon. G. W. Wannamaker, Judge.
Affirmed.
Wilson & Wilson for appellant.
(1) The separation agreement was a bar to the action for divorce. Simpson v. Simpson, 31 Mo. 24; Dwyer v Dwyer, 16 Mo.App. 422. The evidence did not establish indignities within the meaning of the statute. (2) All of it amounted simply to the wrangling due to lack of conciliatory temper of both parties. It was not an indignity. Holschbach v. Holschbach, 134 Mo.App. 257; Webb v. Webb, 44 Mo.App. 229; Griesedieck v Griesedieck, 56 Mo.App. 94. (3) An indignity to be intolerable in the statutory sense, must amount to a species of mental cruelty. Holschbach v. Holschbach, supra; Goodman v. Goodman, 80 Mo.App. 274.
J. W Peery for respondent.
(1) In a case of this kind the appellate court should defer much to the finding of the trial court. Gillespie v. Gillespie, 28 Mo. 598; Stevenson v. Stevenson, 29 Mo. 95; Nichols v. Nichols, 39 Mo.App. 291; King v. King, 42 Mo.App. 454; Wald v. Wald, 119 Mo.App. 347; Griesedieck v. Griesedieck, 56 Mo.App. 98. (2) The ordinary and usual provisions of a deed or articles of separation do not preclude either party from maintaining an action for divorce. Clark v. Fosdick, 118 N.Y. 7, 22 N.E. 1111; J. G. v. H. G., 33 Md. 401; Fosdick v. Fosdick, 15 R. I. 130, 23 A. 140; Wood v. Wood, 5 Ired. 674; Stokes v. Stokes, 1 Mo. 320; Anderson v. Anderson, 1 Edw. Ch. 380; Win v. Sanford, 148 Mass. 39, 18 N.E. 677; Rogers v. Rogers, 4 Paige Ch. 516; Franklin v. Franklin, 154 Mass. 515, 28 N.E. 681; 2 Bish. Mar. Div. and Sep. (Ed. 1891), secs. 445, 243, 244, 288, 331; 1 Bish. Mar. Div. and Sep. (Ed. 1891), sec. 1282; Ebye v. Eby (Com. Pl.), 17 Pa. Co. Ct. R. 269; Lemmert v. Lemmert, 103 Md. 57, 63 A. 380; Oglivie v. Oglivie, 37 Or. 171, 61 P. 627. (3) Of course, neither party to a deed, or contract, or agreement of separation, can, during the separation thereunder, maintain a suit against the other for divorce on the ground of desertion or abandonment. Rodgers v. Rodgers, 84 Mo.App. 197; Barclay v. Barclay, 98 Md. 366, 56 A. 804; Power v. Power, 65 N.J.Eq. 93, 55 A. 111; McAlister v. McAlister, 62 A. 1131. (4) The indignities contemplated by the divorce law as authorizing a decree of separation, consist of unmerited contemptuous conduct; any act towards another which manifests contempt for him; contumely, incivility or injury, accompanied with insult and amounting to a species of cruelty of the mind. Lynch v. Lynch, 87 Mo.App. 37; Goodman v. Goodman, 80 Mo.App. 281; Brown v. Brown, 53 Mo.App. 460.
This is a suit for divorce. The plaintiff bases his right to a divorce on the ground of indignities. They are substantially as follows: That immediately after his marriage to defendant she commenced a tirade of abuse against plaintiff, calling him mean names, and kept up a system of quarreling to such an extent that it become unbearable; "and would often call the plaintiff an 'old devil,' and it was a very common thing for her to say she hated him worse than the devil himself." That within about a week or ten days after plaintiff and defendant were married she commenced to nag at plaintiff and repeatedly asked him if he was dissatisfied and always telling him if he was dissatisfied that she would let him off. Finally plaintiff said to her, "You married me to get what I have got, did you?" And to this she said, "Yes, and intend to bleed you for all there is in you." And further plaintiff alleges "that the defendant often during the time they lived together, would wake plaintiff up during the night and commence to abuse him because he snored in his sleep, and would tell him that he snored worse than any old boar, or sow." After stating other incidents of abuse heaped upon him by defendant, the petition alleges, that it seemed to be the delight of defendant to call him a stray devil or stray dog. Defendant has frequently told plaintiff
The defendant asserts that she filed a demurrer to the petition but that it was overruled by the court. We do not find any reference to it in the record. However defendant insists as a part of her case that the alleged indignities set forth in the petition are not sufficient under the statutes to authorize the court to grant the plaintiff a divorce.
The answer after admitting the marriage and that the parties lived together for a stated time, denied the other allegations of the petition, and then plead articles of separation, which were entered into between the parties on June 26, 1908, as a bar to plaintiff's right to a divorce.
The marriage occurred on the 23d day of December, 1906, and the parties lived together until the 26th day of June, 1908. The plaintiff was a widower, the father of twelve children, four of whom resided at his home. He was sixty-two years of age. The defendant was a widow about fifty-seven years of age and without children. A few months prior to the marriage she had gone to the home of plaintiff under a contract of employment as his housekeeper, in which employment she continued until such marriage occurred.
The testimony of plaintiff tended to show a course of abusive and contemptuous treatment of him by defendant, beginning shortly after their marriage and continuing until they finally separated. She applied to him more than once, vulgar and indecent names in the presence not only of members of his own family, but also in the presence of others. On cross-examination of plaintiff and by the introduction of other witnesses defendant introduced into the case repulsive and scandalous charges as to the brutal conduct of plaintiff towards herself, all of which plaintiff denied. These charges were uttered by defendant in the neighborhood in which the parties lived. On one occasion she said to plaintiff in the presence of a member of his family: "Well, I didn't know when I married you that I was marrying a jackass or a stud horse." Plaintiff testified that soon after the marriage his wife began to talk of leaving him and that "she intended to bleed him for every cent there was in him;" that she was determined to leave him and go to St. Louis to keep house for an unmarried man; that she insisted upon plaintiff sending or taking her to the railroad for that purpose; and said, that she wished he was dead and in hell. It was shown that they often quarreled, but it did not appear than plaintiff was the aggressor in such quarrels. Other evidence tended to show that defendant's conduct to plaintiff was calculated to destroy the peace of his household.
On the other hand defendant's evidence tended to contradict that of the plaintiff as to her treatment of him and to show bad treatment towards herself on the part of plaintiff.
On the 23d day of June, 1908, the parties entered into a written agreement to separate. The agreement provides that defendant shall take all the personal property she brought to plaintiff's home; that plaintiff pay her three hundred dollars in cash and a fee of twenty-five dollars to her legal counsel, in consideration of which she released all claim to dower in his real estate, to a homestead, maintenance, alimony, suit money, or attorney's fees, etc. On his part plaintiff releases all claim to any property of the defendant, etc. By the terms of the agreement plaintiff was to remove defendant's effects to a certain place designated, and that until they were so removed she was to remain at the home in peace, and without molestation by plaintiff.
The agreement was duly acknowledged by the parties and the separation was had according to its terms.
The court granted plaintiff's prayer for a divorce and the defendant appealed.
One of the contentions of defendant's is that because of the said agreement to separate, the marriage relation assumed by the parties cannot be severed by a decree of divorce. This would be true if a decree was sought on the ground...
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