Coons v. Coons

• Decision Date: 09 January 1922
• Docket Number: No. 14079.,14079.
• Citation: 236 S.W. 358
• Parties: COONS v. COONS.
• Court: Missouri Court of Appeals

236 S.W. 358

COONS v. COONS.

No. 14079.

Kansas City Court of Appeals. Missouri.

January 9, 1922.

Appeal from Circuit Court, Jackson County; Daniel E. Bird, Judge.

"Not to be officially published."

Suit for divorce by Ernest L. Coons against Bessie M. Coons. Decree for plaintiff. Motion for new trial overruled, and defendant appeals. Affirmed.

See, also, 236 S. W. 364.

Ringolsky & Friedman and Wm. G. Boatright, all of Kansas City, for appellant.

R. D. Groves, P. E. Reeder, and Miller, Camack, Winger & Reeder, all of Kansas City, for respondent.

TRIMBLE, P. J.

A husband brought suit for divorce on the ground of indignities, charging that his wife, at various times, told plaintiff she no longer cared for him, and would not live nor consort with him as his wife, or perform any of her wifely duties; that since the marriage she has corresponded with other men without plaintiff's knowledge, has frequently associated and consorted with other men in plaintiff's absence and without his knowledge, and has clandestinely met various men at various times during the months of January and February, 1920.

The wife filed an answer and cross-bill charging that plaintiff was possessed of an abnormal and degenerate sexual appetite and an ungovernable passion, and, with utter disregard for her health, had forced her to such sexual excesses that her health has been broken and she has been compelled to consult doctors who advised that restraint must be practiced if her health and life would be preserved, that plaintiff was informed of the situation, but refused to desist, and that one night, after she had begun to sleep in her separate apartment, the plaintiff broke open the door and by force and violence assaulted defendant in her bed, and by superior physical strength compelled her to submit her body to him, by reason of which she was bruised and injured and her health greatly impaired. She asked an absolute divorce and prayed for alimony.

At the close or: the evidence on both sides the court rendered a decree for plaintiff on his petition and dismissed the wife's cross-bill. Defendant thereupon employed new counsel, and with her motion for new trial filed an affidavit wherein she said:

"I realize now, on the facts as they really are—at least I am told—that neither the plaintiff nor myself are entitled to a divorce from each other, and I have authorized my attorneys now to withdraw my cross-petition."

When the motion for new trial came on to be heard, the defendant offered the affidavit in evidence in support thereof, but the trial court excluded it and overruled the motion. Thereupon defendant appealed.

There is no claim that the wife is entitled to a divorce. On the contrary, she concede.; that she is not, and in view of that fact she has withdrawn her cross-bill. Her contention, however, is that her husband is likewise not entitled to a divorce. Such contention may perhaps be regarded as dividing itself into two branches and be considered in two aspects: First, that the evidence adduced in support of his petition is not sufficient to warrant a divorce in his favor; second, that he is not an innocent and injured party, but, on the contrary, has connived at the misconduct of his wife, and therefore should be denied a divorce upon that ground. The first of these two branches depends on the evidence adduced at the trial, while the second involves the affidavit which the defendant filed with her motion for new trial, or, to state it a little more accurately, it has to do with the evidence viewed in the light of the affidavit that was filed.

It is well settled that it is our duty as an appellate court (although mindful somewhat of the superior advantages of the chancellor who has had the opportunity of seeing the witnesses) to examine the record and determine for ourselves the very right of the case as it is presented to our consciences. Revercomb v. Revercomb, 222 S. W. 899, 909; Hogsett v. Hogsett, 186 S. W. 1171; Scholl v. Scholl, 194 Mo. App. 559, 185 S. W. 762. It is equally well settled that to entitle a spouse to a divorce that one must be the innocent and injured party. The question is not who is most at fault, for, if both are, then neither will be granted release from the matrimonial bonds, however galling they may be. 19 C. J. 93; Libbe v. Libbe, 157 Mo. App. 701, 138 S. W. 685; Barth v. Barth, 168 Mo. App. 423, 151 S. W. 769; Gruner v. Gruner, 183 Mo. App. 157, 165 S. W. 865.

So far as concerns the evidence in support of a divorce, the facts presented by the record are as follows:

The parties were married in October, 1919, and moved to a commodious and comfortable home furnished by the husband in Kansas City, where they lived as husband and wife until January 29, 1920, when the wife began occupying a separate bedroom and they ceased having marital relations, though the husband continued to reside at said home until March 7, 1920, when a complete separation took place, he leaving the house and bringing suit for divorce.

On October 31, 1919, the wife went on a visit to her sister in Nebraska, returning home about November 11th of that year. Up to that time the relations with each other were friendly and pleasant. The husband was a traveling salesman, and his business required him to be away from home at certain intervals according to a route sheet directing his movements, a copy of which was kept at home showing not only what days he would be away from home, but also where he would be at any particular date. He was away upon his route when his wife returned on November 11, but he reached home on the 15th. According to his evidence, he found his wife's attitude and feelings toward him greatly changed without apparent cause. He was unable to do anything to please her. She was nagging, grouchy, and abusive, apparently seeking an opportunity to quarrel.

He discovered about this time that his wife bad a valuable brooch with 17 or 18 diamonds in it. She said at the trial she got it (valued at $500 or $600) in Nebraska for $250 of her own money. She had it pinned securely to the bottom of her handbag and accused him of rummaging through the handbag and of taking it out, else it would not have appeared loose therein and on top of other articles. She gave him no information as to where she obtained it, and admits they had a quarrel about it; he denying that he had searched her handbag for it.

About the latter part of November the plaintiff had decided to give up some of his territory because it was too hard on him and necessitated his being away from home too much. His wife objected to the giving up of this territory because, she said, it was where he made the most money; and she complained because he would not give her the privilege of signing checks on his account and give her cash to spend. She said that, if she could not have all the money she wanted to spend, "there would not be any happiness in life" for her, and she knew better than he did what he could afford to have her spend, and that she could have married two other men who could have bought and sold him several times. He told her that as long as he earned the money he would pay the bills and sign the checks and determine what they could afford. The evidence shows that he supplied her with a well-furnished home and was not niggardly with her in regard to money matters. He was prospering in his business and had accumulated some $10,000 or $12,000.

The next time he came home from his route he wanted to kiss his wife in greeting, but she refused, saying she did not care to kiss him, and, when asked the reason why, said, "I don't love you and don't feel like I am married to you." Plaintiff says that at other times his wife told him she did not love him.

Once while plaintiff was absent on business in Topeka his wife was seen to come out of a hotel in the city with a strange man and drive away with him in a taxicab. The wife on the stand attempted to explain or deny every other occurrence testified to against her, but we are unable to find where she denied or explained this one. It is not disclosed when plaintiff discovered this, but presumably it was not until after they separated.

On December 11, 1919, plaintiff went to Chicago to check over his account with his firm, and his wife accompanied him. He was expecting to stay until the 20th or 21st. While there, on Saturday, the 14th, the wife wrote a letter to a friend of hers, a Mrs. C_____ at St. Joseph, saying, among other things:

"I can't have my life ruined, and I must get out of this, and I am going to, regardless. I am so miserable with this man I can't be my natural self. * * * I hate this village of Chicago. Too many people to dodge * * * I'm sure: go back Tuesday alone. Nothing here."

This was written less than two months after the marriage, and during a portion of this time her husband had been away from home on business.

A Mr. Kaufman who was going to take over plaintiff's southern territory was in Chicago with his wife, and plaintiff wanted his wife to meet them and help entertain Mrs. Kaufman (who was a stranger in Chicago), as they had been very kind to him. His wife refused, saying she did not propose to mix up in his business affairs, and did not care to meet the people or do things she did not like to do, and that—

"I should have known better than to have married; our ideas of life are just like this (crossing her fingers). I know the things that make you happy, the things you want me to do, but am not going to do it. I am going back to Kansas City-to-morrow night."

The day before she had appeared with a new string of pearls about which her husband inquired, but the only satisfaction he got from her was that they were not hers.

True to her announced intention and to her statement in her letter to Mrs. C_____, she attempted to return to Kansas City on Tuesday, but, for want of a reservation, was compelled to wait until Wednesday, when she went, although her husband was...