Delaney v. Delaney

• Decision Date: 05 December 1922
• Docket Number: No. 17130.,17130.
• Citation: 245 S.W. 1075
• Parties: DELANEY v. DELANEY.
• Court: Missouri Court of Appeals

245 S.W. 1075

DELANEY v. DELANEY.

No. 17130.

St. Louis Court of Appeals. Missouri.

December 5, 1922.

Appeal from Circuit Court, Monroe County; Charles T. Hayes, Judge.

"Not to be officially published."

Action by R. V. Delaney against Annie E. Delaney. From a judgment in favor of defendant, plaintiff appeals. Reversed and remanded.

James P. Boyd and Wm. W. Barnes, both of Paris, for appellant.

James J. Browning, of Paris, for respondent.

DAUES, J.

This action is one for divorce. The defendant, the wife, secured a decree of divorce on her cross-bill. Plaintiff appeals. The petition charged intolerable indignities on the part of the wife, and specified as such indignities that the defendant possessed a sullen disposition, abused and quarreled with plaintiff, and otherwise treated him with contempt and insult. The original answer and cross-bill of defendant, after averments of denial, charged the husband with rendering her indignities to make her condition intolerable; that he was indifferent to her and refused to remain at home at nights. Defendant alleged other acts of neglect, and that he heaped humiliation and abuse upon her. There were two daughters born of the marriage, who at the time of the trial were 8 and 14 years of age respectively.

We leave a discussion of the facts in the case for a consideration of the legal questions raised on this appeal.

The record discloses that at the conclusion of the trial the chancellor continued the cause to take same under advisement. After 10 days the court, calling the cause, again took up the matter, and upon its own motion suggested to the defendant that she amend her cross-bill by interlineation by inserting therein at page 1 and line 16 the following words and figures, to wit:

"That on the 28th day of December, 1917, plaintiff absented himself from defendant without a reasonable cause for a space of one whole year next before the filing of the defendant's cross-bill herein."

This amendment therefore appears immediately after the words "but the said plaintiff, wholly disregarding his duties as the husband of defendant, has offered her such indignities as to render her condition in life intolerable, as in this, to wit." In other words, the interlineation stands as a specification of the indignities charged in the cross-bill. Upon such amendment then being made, and the defendant protesting and excepting to such amendment and procedure, the court then rendered the decree, which is, in part, as follows:

"This cause having been heretofore submitted and taken under advisement by the court, and the parties now appearing in this day by their respective attorneys, the court, of its own motion and over the objection of the plaintiff, grants the defendant leave to amend her cross-bill if she so desires, by interlineation, so as to allege desertion on the part of plaintiff, in order that the pleadings may conform to the proof as heretofore taken.

"And now comes defendant and amends the said cross-bill as above suggested instanter.

"And the court, being now fully advised on the premises, cloth find that the plaintiff has wholly failed to sustain the allegations of the petition and is entitled to no relief thereunder. The court doth further find for the defendant upon her cross-bill as amended upon the grounds of desertion. Decree of divorce for the defendant upon her cross-bill as prayed therein, and dismisses plaintiff's petition."

The decree then awards custody of the two young girls to the mother and awards $20 a month to the defendant as support for the two daughters, and $10 a month as alimony for the defendant during her widowhood.

The serious questions addressed to us on this appeal are whether the court committed reversible error in permitting this amendment at such stage of the proceedings and under circumstances such as described, and whether the amendment, even if allowable under such circumstances, in fact is an averment charging desertion as a separate ground of divorce. The cross-bill, after being amended by such interlineation, clearly charges nothing else than desertion as an element along with other elements to make up the statutory ground of divorce of indignities.

As early as the case of Cannon v. Cannon, 17 Mo. App. 390, it has been held that desertion, though insufficient as a separate statutory ground for divorce, may be an element, with other elements, to make up the statutory ground of divorce of indignities. However, the decree does not grant the defendant a divorce on the ground of indignities, and, indeed, counsel for respondent concedes that the decree is bottomed upon the amendment as alleging the separate and distinct marital offense of desertion as a ground of divorce.

Counsel for respondent asks that the cross-bill be amended in this court. Of course, no such amendment can be made here, and it is equally clear that the decree rendered cannot stand upon the cross-bill as presented in this record.

But, if we are to consider the amendment as a separate and distinct allegation for divorce on the statutory ground of...