Donley v. Donley

• Decision Date: 24 October 1910
• Citation: 131 S.W. 356,150 Mo. App. 660
• Parties: DONLEY v. DONLEY
• Court: Missouri Court of Appeals

131 S.W. 356

150 Mo. App. 660

DONLEY v. DONLEY

St. Louis Court of Appeals. Missouri.

October 24, 1910.

1. DIVORCE (§ 22) — "HABITUAL DRUNKENNESS FOR THE SPACE OF ONE YEAR."

Occasional intoxication is not "habitual drunkenness for the space of one year," under Rev. St. 1899, § 2921 (Ann. St. 1906, p. 1678; Rev. St. 1909, § 2370), providing for a divorce on that ground.

2. DIVORCE (§ 31) — GROUNDS — FAILURE TO SUPPORT.

That a husband does not give his wife money is not of itself a failure to support.

3. DIVORCE (§ 133) — DESERTION.

Evidence held insufficient to entitle a wife to a divorce for desertion.

4. DIVORCE (§ 186) — APPEAL.

On appeal in divorce actions, the appellate court will review the evidence and award the judgment the trial court should have awarded.

Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

Action by Callie Donley against Charles Donley. From a judgment refusing a divorce, plaintiff appeals. Affirmed.

Lawrence McDaniel, for appellant.

REYNOLDS, P. J.

This is an action for divorce by the wife, plaintiff, against her husband, commenced in the circuit court of the city of St. Louis the 23d day of July, 1908. The parties were married in St. Louis county February 23, 1907. There are some charges in the first count of the petition to the effect that defendant frequently, and without the consent and against the wishes of plaintiff, went out at night and remained away from the home of plaintiff and defendant until unreasonably late hours, and frequently returned to the home under the influence of liquor; that defendant was of a cross and sullen disposition, and would frequently refuse to speak to or in any way recognize plaintiff; that during the time they had lived together defendant did not give or furnish plaintiff any money whatever for her support. It is further averred that on the 9th of April, 1907, defendant, without any reasonable cause or any cause whatever, deserted plaintiff and remained away from their home until the 17th of July, 1907, when defendant returned and remained there one day. This is the substance of what is called the first cause of action. "As a further cause of action," it is charged that on the 18th of July, 1907, defendant without any reasonable cause or any cause whatever deserted plaintiff and has absented himself from plaintiff without any reasonable cause for a space of one whole year and more next preceding the filing of the petition, and during said time has contributed nothing to the support of plaintiff; that no children were born of the marriage; that plaintiff is now a resident of the city of St. Louis and of the state of Missouri and has resided in the state for one whole year and more next preceding the filing of the petition. Defendant was personally served, but made no appearance and filed no pleading. On a hearing before the court, default having been taken, the court, after the plaintiff and her witnesses had testified, ordered the defendant to be subpœnaed for examination. This was done, and he appeared and was examined by the court as a witness. At the end of the hearing the court dismissed the action. Plaintiff, after filing a motion for a new trial and excepting to the overruling of it, has duly perfected an appeal to this court.

While the petition charges acts of occasional intoxication, there is no charge in it that the defendant had "been addicted to habitual drunkenness for the space of one year," as required by statute. Section 2921, Rev. St. 1899 (Ann. St. 1906, p. 1678; section 2370, Rev. St. 1909). In fact, there is no evidence to sustain such a charge, even if it had been made. Occasional intoxication, which is all that is pretended to have been the case, is not habitual drunkenness for the space of one year—which means one year of the marriage—and the parties here separated within the first year. Nor is there any charge of a failure to support, beyond the charge that defendant had not given plaintiff any money, which is not, of itself, a failure to support. The case, in fact, must rest on the question of causeless desertion, or, as the statute has it, that the husband...