Day v. Day

Decision Date07 October 1968
Docket NumberNo. 24959,24959
Citation433 S.W.2d 52
PartiesCarl R. DAY, Appellant, v. Margaret M. DAY, Respondent.
CourtMissouri Court of Appeals

Lester B. Adams, Kansas City, for appellant.

Louis Wagner, Kansas City, for respondent.

MORGAN, Judge.

In this divorce case, the husband is plaintiff. The wife responded to his petition by filing an answer in the nature of a general denial. At the conclusion of the husband's testimony, the trial court found him not to be innocent and by its decree awarded the wife an allowance for attorney fee and denied the divorce. The husband has appealed.

His petition set out the date of marriage as April 13, 1935, and the separation date as January 1, 1958. The misconduct of the wife, among other things, was alleged to have included excessive drinking and consorting with other men. The children were emancipated and a divorce was the only relief sought.

The husband as a witness testified as to the misconduct of the wife and established that it stemmed primarily from her regularity in frequenting various taverns. On cross-examination, he readily admitted his own adulterous conduct. Although from the record it might be argued otherwise, we accept his view of the testimony that his disregard of the marriage vows began after the separation. He named one female individual with whom he had lived for three years, and when asked by the court if he had had sexual relations with other women since 1958, he answered, 'Absolutely.' In rationalizing his position, he declares, 'When a couple have been separated for some 8 or 9 years, as in the case at bar, common sense tells us each will have ignored their marriage vows during those years.' We need not comment on nor attempt to speculate as to the correctness of such an academic statement, but we will limit our review to deciding if such conduct by plaintiff, whether commonplace or not, disqualifies him from obtaining a divorce in this state.

Basically, the husband contends that the requirement a person seeking a divorce must be legally 'innocent and injured' is outmoded, should be abandoned, and that a divorce should be granted without regard to marital fault. The argument is not novel. Our Supreme Court in 1869 in the case of Hoffman v. Hoffman, 43 Mo. 547, construed the counterparts of what are now Sections 452.010 and 452.090 V.A.M.S. and declared, 'If both parties have a right to divorce, neither party has.' Inherent in this basic rule is the requirement a party seeking relief must be 'innocent' of any misconduct which would give his or her spouse corresponding grounds for divorce. In the intervening one hundred years, the appellate courts of this state have repeatedly restated this rule and consistently followed and applied the standards found in the Hoffman case. Mo.Dig., Divorce, k55; Simon v. Simon, Mo., 248 S.W.2d 560; Cody v. Cody, Mo.App., 233 S.W.2d 777; Fudge v. Fudge, Mo.App., 355 S.W.2d 381; Ezell v. Ezell, Mo.App., 348 S.W.2d 592; Gregg v. Gregg, Mo.App., 416 S.W.2d 672; J. v. K., Mo.App., 419 S.W.2d 461; Franklin v. Franklin, 365 Mo. 442, 283 S.W.2d 483. In the latter case, our Supreme Court stated that making proof of innocence an affirmative burden of the plaintiff was '* * * neither more nor less than an application of the equitable doctrine of 'clean hands' to a divorce action.' If we are to give more than lip service to this doctrine, it matters not whether the plaintiff's misconduct occurred during cohabitation with the wife or after their separation. Cherry v. Cherry, 225 Mo.App. 998, 35 S.W.2d 659, 661; Glenn v. Glenn, Mo.App., 192 S.W.2d 629. With adultery being listed as a specific ground for divorce in Section 452.010, V.A.M.S., plaintiff forfeited any claim of innocence. It was not necessary for the husband's misconduct to be alleged as recriminatory matter in the wife's answer. First, because the plaintiff had the affirmative burden of showing his freedom from such misconduct, and secondly, the right of the trial court to protect the interests of the public was 'not concluded by a failure to plead.' Owen v. Owen, 48 Mo.App. 208; Cody v. Cody, Mo.App., 233 S.W.2d 777; Brackmann v. Brackmann, Mo.App., 202 S.W.2d 561. As we said in Langshaw v. Langshaw, Mo.App., 331 S.W.2d 15, '* * * a divorce is not to be granted for the mere asking.' A further argument is made that the failure of the wife to testify prevented the trial court from knowing whether or not she had consented to the husband's misconduct. Such evidence of collusion could only have created a further bar to divorce as specifically provided in Section 452.030, V.A.M.S. The overall tenor of plaintiff's argument is that there is no advantage in leaving the parties married. In view of the parties' conduct, it would not be facetious to say we can see little disadvantage to them. Although equitable principles are applied, a proceeding for divorce is a statutory action, and this court is not the proper forum to consider the suggested...

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5 cases
  • Frederick v. Frederick
    • United States
    • Missouri Court of Appeals
    • January 14, 1971
    ...doctrine of 'clean hands' to a divorce action.' Franklin v. Franklin, 365 Mo. (banc) 442, 446, 283 S.W.2d 483, 486(7); Day v. Day, Mo.App., 433 S.W.2d 52, 54. Of course, the requirement of innocence did not necessitate proof of such exemplary deportment or angelic perfection as to have excl......
  • Buettmann v. Buettmann
    • United States
    • Missouri Court of Appeals
    • February 23, 1971
    ...to be entitled to a divorce that party must be innocent, that is, free of conduct which would entitle the other to a divorce. Day v. Day, Mo.App., 433 S.W.2d 52(1--7). We examine the evidence to determine each party's innocence, first that of the The first issue is whether the plaintiff-wif......
  • Hugeback v. Hugeback
    • United States
    • Missouri Court of Appeals
    • July 15, 1969
    ...The evidence also established that she had become intoxicated in public and had to be carried off the Admiral boat. In Day v. Day, Mo.App., 433 S.W.2d 52, 54 the court pointed out that our Supreme Court in 1869 in the case of Hoffman v. Hoffman, 43 Mo. 547, construed the counterparts of wha......
  • Wehmeier v. Wehmeier
    • United States
    • Missouri Court of Appeals
    • November 18, 1969
    ...spouse grounds for divorce and the ensuing principle that 'if both parties have a right to divorce, neither party has,' citing Day v. Day, Mo.App., 433 S.W.2d 52(1--7). Mr. Wehmeier accepts that principle but relies on its qualification that words and acts of reasonable retaliation are not ......
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