Cox v. Cox

• Decision Date: 04 December 1972
• Docket Number: No. 25932,25932
• Citation: 488 S.W.2d 275
• Parties: Aileen COX, Respondent, v. Elvin COX, Jr., Appellant.
• Court: Missouri Court of Appeals

Page 275

488 S.W.2d 275

Aileen COX, Respondent, v. Elvin COX, Jr., Appellant.

No. 25932.

Missouri Court of Appeals, Kansas City District.

Dec. 4, 1972.

Wilbur L. Pollard and Wm. Harrison, Norton, Norton & Pollard, Kansas City, for appellant.

R. LeRoy Miller and R. Max Humphreys, Miller & Humphreys, Trenton, for respondent.

DIXON, Judge.

The plaintiff wife received a decree of divorce in the Circuit Court of Grundy County. She alleged her then residency in the county and that the cause for divorce occurred in Missouri. There were no children, and no allowances for alimony or attorneys' fees were made. The husband appeals claiming the grounds for divorce were insufficient and that the wife was not a resident of Missouri when the suit was filed.

The basis for the first contention is that the wife was the only witness, and her testimony was uncorroborated and did not show a continuing course of conduct visiting mental or physical cruelty on plaintiff. This court reviews de novo and that review shows evidence of repeated infliction of verbal abuse and physical violence on the plaintiff. Defendant's denial of the verbal abuse is at best equivocal. The issue turns on credibility and the statute and a myriad of cases require deference to the trial court's findings. Rule 73.01(d) V.A.M.R. As to corroboration, the record shows some corroboration but a divorce may be granted on uncorroborated evidence. Miskimen v. Miskimen, 344 S.W.2d 289 (Mo.App.1961); Pilkinton v. Pilkinton, 401 S.W.2d 505 (Mo.App.1966).

The second issue raises a closer point. The parties are not in disagreement as to the requirements for jurisdiction to award a divorce under Section 452.050 RSMo 1969, V.A.M.S. That section and the cases construing it require that the plaintiff be a resident of Missouri at the time the suit is filed when reliance for jurisdiction is placed upon a cause for divorce occurring in Missouri instead of the one year residency requirement of the statute. McConnell v. McConnell, 167 Mo.App. 680, 151 S.W. 175 (1912); Gooding v. Gooding, 239 Mo.App. 1000, 197 S.W.2d 984 (1946). There is, likewise, concurrence by the parties that residence or domicile is largely a matter of intention coupled with an act or acts conformable to the intention (Sharp v. Sharp, 416 S.W.2d 691 (Mo.App.1967), l.c. 695); actual bodily presence is necessary although not required to be continuous. Madsen v. Madsen, 193 S.W.2d 507 (Mo.App.1946). It is when these acknowledged principles are applied to the facts that the live dispute between the parties appears.

Iterating the function of the trial court to determine the issues of credibility, facts here appear, some based on the issue of credibility and some undisputed, which will support the decree. A short recital of evidentiary facts and inferences drawn therefrom will demonstrate that the trial court's resolution of the factual dispute as to jurisdiction is supported by the record.

The plaintiff, whose family resided in Milan, a northwest Missouri community in Sullivan County, taught school in Iowa for twenty years after six years of teaching in rural schools in Sullivan and Grundy Counties, Missouri. Her first husband had been killed in an automobile accident. The defendant, who had been in Des Moines only six months, altogether, and apparently only two months before the marriage, met and married her in March of 1968. About four months later, he removed to a farm in which plaintiff invested some thirty thousand dollars in purchasing, equipping and supporting during the next three years. The funds were the...