Creasey v. Creasey

• Decision Date: 12 November 1912
• Citation: 168 Mo. App. 68,151 S.W. 219
• Parties: CREASEY v. CREASEY.
• Court: Missouri Court of Appeals

151 S.W. 219

168 Mo. App. 68

CREASEY v. CREASEY.

St. Louis Court of Appeals. Missouri.

November 12, 1912.

Rehearing Denied December 3, 1912.

1. DIVORCE (§ 37) — DESERTION — WHAT CONSTITUTES.

Where a husband wrongfully abandoned his wife, she is not guilty of desertion in living apart from him, unless, after a bona fide effort on his part to effect a reconciliation and to obtain her consent to his return, she refuses and continues to live apart for the statutory period.

2. DIVORCE (§ 133) — ACTIONS — DESERTION — EFFORTS AT RECONCILIATION.

In an action by a husband for divorce, evidence held to show that his first efforts at reconciliation were not in good faith, but that subsequent efforts and attempts were in good faith.

3. DIVORCE (§ 37) — DESERTION — EFFORTS AT RECONCILIATION.

Where a husband abandoned his wife, previous insincere efforts to return and effect a reconciliation, while material on the integrity of subsequent ones, do not preclude him from the advantage of a bona fide effort so as to render her acts in continuing to live apart desertion.

4. DIVORCE (§ 37) — DESERTION — EFFORTS AT RECONCILIATION.

Where actions for divorce and separate maintenance were pending between husband and the wife whom he had abandoned, the husband who had made numerous efforts at reconciliation was, upon the wife's offer to return to him, made the night before the day on which her action for maintenance was to be called, entitled to require as a condition to receiving her back that she agree to dismiss the action, without losing the benefit of his offers.

5. DIVORCE (§ 37) — DESERTION — EFFORTS AT RECONCILIATION.

Where a wife, whose husband abandoned her, instituted an action for separate maintenance, alleged offers in her motions for attorney's fees that she was at all times willing and ready to resume marital relations, being but excuses for demanding money, are not such bona fide offers as to render the husband guilty of desertion.

6. DIVORCE (§ 37) — "DESERTION" — WHAT CONSTITUTES.

A husband's wrongful abandonment of his wife does not constitute desertion, if within one year thereafter she showed by her words or conduct that she acquiesced in the separation.

7. DIVORCE (§ 37) — GROUNDS — DESERTION.

Where a husband wrongfully left his wife, and she refused to return to him for more than a year, although he in good faith requested her return, the separation for more than a year does not entitle her to a divorce; the original abandonment in itself not being ground for divorce.

8. DIVORCE (§ 133) — DESERTION — EVIDENCE — CONSENT.

In an action for divorce evidence held to establish that a wife consented to her husband's living apart.

Appeal from Circuit Court, Pike County; W. T. Ragland, Judge.

Suit for divorce by Mason Creasey against Carrie B. Creasey. From a judgment awarding defendant a divorce, plaintiff appeals. Reversed and remanded, with directions.

Suit for divorce, wherein plaintiff was denied a divorce and defendant was granted one under the testimony on her cross-bill, with $2,500 alimony in gross. Plaintiff has appealed. The statutory grounds for divorce stated in the petition are: (1) That defendant absented herself without a reasonable cause for the space of one year; (2) that she offered such indignities to plaintiff as rendered his condition intolerable, particularizing. In her cross-bill defendant states against the plaintiff the statutory ground of offering her such indignities, etc., particularizing. She also makes an allegation, which the trial court treated as a sufficient charge that defendant absented himself without reasonable cause for the space of one year, as follows: "That plaintiff, disregarding his duties as the husband of the defendant, did on or about the 21st day of July, 1909, without any cause or excuse whatsoever, and against the desire and without the consent of defendant, deserted and abandoned defendant, and since said date has ever failed, neglected, and refused to support and contribute to the support and maintenance of defendant and to make any provision therefor, other than to permit her to occupy one of his tenement houses and a special allowance provided for a short period of time by the court in a former and other cause."

With a view to determining whether it justifies the decree, we have carefully examined the evidence, which occupies over 660 pages of the printed abstract. As a result thereof we adopt certain of the findings of fact embodied in the decree of the circuit court, as follows: "The court finds: That plaintiff and defendant were married at Mexico, Mo., on the 17th day of April, 1907, and continued to live together as husband and wife from that date until the 21st day of July, 1909. That plaintiff and defendant from the date of their marriage until the latter part of January, or first of February, 1909, faithfully demeaned themselves, and that each treated the other with kindness and affection. That during the latter part of January, or first of February, 1909, for some reason not disclosed by the evidence, a coolness sprang up between them, and their relations became estranged, and from that time on until their separation on the 21st day of July, 1909, there were mutual acts of retaliation and recrimination tending to alienate and destroy their mutual affection; but the court finds that all of the acts and conduct on the part of each of them, whether taken singly or together, did not constitute such indignities as to render the condition of either of them intolerable within the meaning of the statute so as to entitle either of them to a divorce on the ground of indignities alone. The court further finds: That from the date of the marriage of plaintiff and defendant until the 16th day of July, 1909, they lived in a large and well-furnished residence located in a desirable residence district in the city of Mexico, Mo. That on the 16th day of July, 1909, the plaintiff, with the intention of getting defendant out of his home and with the intention of abandoning her, after having so done, furnished a small house in a different part of said city of Mexico and removed his family, including plaintiff, thereto. That on the 21st day of July, 1909, and without any change in the general relations then existing between plaintiff and defendant, and without any previous notice or warning to defendant, plaintiff without legal cause or excuse deserted defendant, and on the same date instituted in the circuit court of Audrain county, Mo., his suit for divorce." We may, at this point, add to the foregoing that the divorce suit last mentioned was voluntarily dismissed by the plaintiff on the 29th day of September, 1909, on which day the plaintiff had offered to resume marital relations with the defendant. On November 9, 1909, the defendant instituted a suit for separate maintenance in the circuit court of Audrain county, Mo., which said suit was pending and undisposed of until November 9, 1910, during which time, however, and thereafter, from time to time, the plaintiff made offers of reconciliation and to resume marital relations with the defendant, which she did not accept or act upon.

The only question which we deem necessary to consider at greater length in this opinion is whether either of the parties is entitled to a divorce on the ground of desertion. That depends upon the sincerity of plaintiff's offers of reconciliation, and upon whether by her words or conduct, subsequent to his leaving her, she acquiesced in the separation continuing. In these respects the evidence discloses the following facts: On September 29, 1909, while his first divorce suit was pending, the plaintiff called at the defendant's house. A Mrs. Tucker was there talking to the defendant. She had come before she had her breakfast, though she lived about four blocks away, and she stated that fact to defendant. It appears to have been the first time plaintiff called since he left his wife. Prior to that time all his efforts seem to have been directed toward procuring a dissolution of his marriage. Whether he and Mrs. Tucker met there by prearrangement so that she might serve as a witness is a question. Plaintiff and Mrs. Tucker testify that, on the evening before, he had asked her to call for the purpose of ascertaining whether his wife would talk to him. They both assert that neither had any idea of finding the other there. She says that she had called twice the evening before and had failed to find defendant in. Defendant testifies in effect that Mrs. Tucker did not make those two calls; that she was home at the time they were said to have been made. Plaintiff does not explain why he did not postpone his visit until he heard finally from Mrs. Tucker as to his wife's willingness to talk with him. Defendant's version of what occurred on this occasion is as follows: Mrs. Tucker told her that plaintiff had been to her (Mrs. Tucker's) house the night before and wanted to know if defendant would have a talk with him. Defendant said: "I don't know. I haven't really recovered from the way Mr. Creasey has done me to have a talk with him." Then, seeing her husband approaching the house, she said to Mrs. Tucker, "There comes Mr. Creasey, and I don't feel like I want to talk with him yet awhile." Mrs. Tucker answered: "If I didn't want to see him I wouldn't go to the door." She did not go to the front door when he rang the bell, and he came around to the kitchen door and asked her if he could come in. She told him it was his house. He came in and said: "Mamma, I have come to have a talk with you. I want you to forgive this and let's go back." He threw his arms out to her, saying: "Mamma, I have come to acknowledge I have done wrong. Come to my arms and let me hug and kiss you." She answered, "Mr. Creasey, I can say to you, as you said to me time without number, that you need not come to me." Then he said, "Now you see, Mrs. Tucker." Defendant said, "Now you see, Mrs. Tucker, wasn't there a...