Douglass v. Douglass

• Decision Date: 20 May 1930
• Parties: LENA DOUGLASS, RESPONDENT, v. ALLEN M. DOUGLASS, APPELLANT. [*]
• Court: Missouri Court of Appeals

28 S.W.2d 398

224 Mo.App. 485

LENA DOUGLASS, RESPONDENT, v. ALLEN M. DOUGLASS, APPELLANT. ^[*]

Court of Appeals of Missouri, Springfield

May 20, 1930

Appeal from Circuit Court of Dunklin County.--Hon. Charles L Ferguson, Judge.

AFFIRMED.

Judgment affirmed.

Langdon R. Jones for appellant.

(1) Plaintiff's petition does not state facts sufficient to constitute a cause of action, and is insufficient to authorize a decree of divorce in favor of plaintiff. The petition on its face alleged a state of facts which, if proven, would amount to desertion or abandonment of plaintiff by defendant, but discloses on its face that such desertion or abandonment has not continued for a space of one year and in such situation the petition is insufficient. Section 1801 R. S. 1919; McCarty v. McCarty, 117 Mo.App. 115; Hooper v. Hooper, 19 Mo. 355; 9 R. C. L. 358; 19 C J. 61; Kirkpatrick v. Kirkpatrick, 16 L.R.A. (N.S.), 1071, (Neb.), 116 N.W. 499. The purported indignities alleged in the petition were a part of and interwoven with the alleged desertion or abandonment in such manner as to constitute separate indignities, even if the allegations could be construed as falling in that class of indignities which the law designates as intolerable. Dowling v. Dowling, 183 Mo.App. 394; Cannon v. Cannon, 17 Mo.App. 394; Johnson v. Johnson, 260 S.W. 772. The portion of the petition charging indignities in general terms is insufficient. Bowers v. Bowers, 19 Mo. 352. Even if it be assumed that the allegations in plaintiff's petition were true, yet the same are not such indignities as our courts declare justify a decree of divorce for indignities rendering the condition in life intolerable. Teel v. Teel, 289 S.W. 974; Hooper v. Hooper, 19 Mo. 355; Johnson v. Johnson, 260 S.W. 770; Kitchen v. Kitchen, 16 S.W.2d 621; Becherer v. Becherer, 299 S.W. 61; Whitewell v. Whitewell, 300 S.W. 455; Grath v. Grath, 261 S.W. 718; Bassett v. Bassett, 280 S.W. 430; Kempf v. Kempf, 34 Mo. 211; Dowling v. Dowling, 183 Mo.App. 454; Cannon v. Cannon, 17 Mo.App. 390. Defendant's offer of reconciliation being in good faith as the evidence discloses, and respondent's refusal of same, are sufficient under the record in this case to bar plaintiff's right to decree of divorce. Creasey v. Creasey, 160 Mo.App. 68; Kirkpatrick v. Kirkpatrick, 16 L.R.A. (N.S.), 1071 (Nebr.), 116 N.W. 499; Vickers v. Vickers, 41 A.L.R. 266, 95 W.Va. 323, 122 S.E. 279; R. C. L., sec. 143, p. 358. (2) The allowance of plaintiff of alimony in gross in sum of $ 5000 is erroneous. (3) The allowance of attorney fees to plaintiff's counsel in sum of $ 500 is excessive under the record in this case.

Ely & Ely and Orville Zimmerman for respondent.

(1) The petition states a good cause of action, being bottomed upon an alleged series of indignities, extending over a long period of time, all of which amounted to a species of mental cruelty. Sec. 1801, R. S. 1919; O'Hern v. O'Hern, 228 S.W. 533, 206 Mo.App. 651; Shine v. Shine, 189 S.W. 410; Lynch v. Lynch, 87 Mo.App. 37; Rose v. Rose, 129 Mo.App. 179; Barth v. Barth, 168 Mo.App. 427; Clark v. Clark, 143 Mo.App. 350; Whitwell v. Whitwell, 300 S.W. 455; Bedal v. Bedal, 2 S.W.2d 183; Larrabee v. Larrabee, 7 S.W.2d 420. (2) Where the sufficiency of the petition is not challenged by demurrer and answer is made joining issue, then the most liberal intendment is indulged in support of the petition. White v. Railroad, 202 Mo. 561; Kerr v. Railroad, 259 S.W. 823; Beane v. St. Joseph, 240 S.W. 844; Nolan v. Railroad, 250 Mo. 497; Adams v. Barber, 139 S.W. 494; State ex rel. Reid v. Griffith, 63 Mo. 545. (3) The alimony awarded respondent was entirely inadequate, taking into consideration the station and situation of respondent and the financial ability of appellant, and should be increased to a reasonable sum. Blair v. Blair, 131 Mo.App. 379; Griffith v. Griffith, 190 S.W. 1021; Hocker v. Hocker, 222 S.W. 387; Reynolds v. Reynolds, 249 S.W. 407; O'Hern v. O'Hern, 228 S.W. 537. (4) The amount allowed counsel for respondent for services rendered in trial of this cause and on appeal is inadequate and should be increased. (See cases last above cited.)

SMITH, J. Cox, P. J., and Bailey, J., concur.

OPINION

SMITH, J.

This is a proceeding for divorce instituted by the wife on November 21, 1928, before Hon. W. S.C. Walker, of the circuit court of Dunklin county, Missouri, who disqualified himself, and Hon. Chas. L. Ferguson was selected to try the case. After a trial of the issues involved in the case the court rendered its decree granting a divorce to the plaintiff, with alimony to the plaintiff in the sum of $ 5000 and allowing an attorney's fee of $ 500 to plaintiff's attorneys. From such judgment and decree, defendant, after an unavailing motion for new trial has appealed to this court. The petition states that on the 10th day of February, 1916, in the county of Kanawah, in the State of West Virginia, the parties were united in marriage and that they removed to the State of Missouri in 1922 and continued to live in Dunklin county until the separation as alleged in the petition. The plaintiff alleged that she faithfully demeaned herself and discharged all her duties as the wife of the defendant and at all times treated him with kindness and affection. The material allegations in said petition are stated as follows:

"That defendant has been guilty of such indignities to the plaintiff as to amount to a species of mental cruelty and as to render her condition intolerable to this to-wit: That in August, 1928, at the suggestion and instance of the defendant she went to West Virginia to visit her mother. That she did not want to go and so informed the defendant.

"That while in Malden, West Virginia, and during the month of September, 1928, defendant wrote her that he did not want her to return home, that he had reached the place 'where I love myself more than I love you,' and wired her not to come home until he said for her to come, and to 'Stay there and do as I tell you.'

"That following receipt of letters and a wire from defendant telling her he did not love her and that the only solution of the matter was a divorce, she came home over his protest and was accompanied by her sister, Mona. That on arrival home he received her coldly and in the presence of neighbors she kissed him but he did not remove his pipe from his mouth and showed no affection but on the contrary indicated that he was very much displeased that she had returned home after an absence of several weeks.

"That as soon as she reached their dwelling the defendant in a very angry manner and in the presence and hearing of her sister said, 'What are you doing here?' and when she replied she came home 'to see him and to see what all this is about,' he replied in a very angry tone, 'You'll find out too, whose scheme is it that Mona is here?' and when she replied that she had been under a doctor's care and that Mona had come to be with her, he said, 'You can go back to West Virginia with her too. That's the place for you. I am not going to have you here. You and Mona can both go back to West Virginia.' That from that time on until she returned to West Virginia he was insulting and insisted she must not remain in Missouri and by his conduct made it impossible for her to live in their home. On divers occasions he insisted she should not remain either in Kennett, or Senath, both places being where they had formerly lived and where she had and still has friends. He further forbade her talking with her friends or telling them anything about their troubles and told her to go quietly back to her mother in West Virginia. That he forbade her using the telephone or automobile without his consent and required her first to inform him what she was going to talk about before conversing with her friends. He told her he did not love her and never had and that he was through acting a hypocrite and to make it plain to her that he would not live with her, that she must leave.

"Plaintiff further states that she begged defendant when he informed her he would no longer live with her, to try again and on her knees entreated him to resume their married status as man and wife. To all her entreaties he remained immovable and adamant.

"That her absence now is an enforced absence, that she has no other place to live.

"Plaintiff states that she is a resident of the county of Dunklin and has resided in Dunklin county, and State of Missouri continuously for more than five years next before the filing of this petition."

The petition alleged the amount of property owned by defendant, and prayed for a complete divorce and for an allowance of alimony, with attorney's fees. The defendant filed an answer and cross-bill; the cross-bill, however, was dismissed before the close of the plaintiff's testimony, leaving the answer a general denial.

The defendant objected by ore tenus demurrer to the introduction of testimony, and complains here that the petition does not state facts sufficient to constitute a cause of action, and is insufficient to authorize a decree of divorce to plaintiff on grounds of indignities.

Our Supreme Court in a very early case of Hooper v. Hooper, 19 Mo. 355, 357, in discussing what constitutes indignities as grounds for divorce, used this language:

"It is impossible to lay down any rules that will apply to all cases, in determining what indignities are grounds of divorce, because they render the condition of the injured party intolerable. The habits and feelings of different persons differ so much, that treatment which would produce the deepest distress with one would make but a slight impression upon the feelings of another. It is impossible therefore, under the statute, to specify particular acts as the...