Ezell v. Ezell

• Decision Date: 18 July 1961
• Docket Number: No. 30720,30720
• Citation: 348 S.W.2d 592
• Parties: Veronica R. EZELL, Plaintiff-Appellant, v. Gerald A. EZELL, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 592

348 S.W.2d 592

Veronica R. EZELL, Plaintiff-Appellant, v. Gerald A. EZELL, Defendant-Respondent.

No. 30720.

St. Louis Court of Appeals, Missouri.

July 18, 1961.

Motion for Rehearing or to Transfer to Supreme Court Denied

Sept. 5, 1961.

Armstrong & Armstrong, F. G. Armstrong, St. Louis, for appellant.

Richard M. Stout, St. Louis, for respondent.

BRADY, Commissioner.

The marital difficulties of the parties to this proceeding have caused reference to the courts in the past. In January, 1959, judgment was entered against the appellant upon her petition and against the respondent on his cross-bill. The appellant filed still another action for divorce and voluntarily dismissed that proceeding. Then on January 19, 1960, the appellant filed her petition for divorce and so commenced the sequence of events with which we are concerned on this appeal. On February 16, 1960, the respondent filed his motion to dismiss, and the trial court overruled the motion on April 5, 1960. The order overruling this motion does not contain any language with regard to an extension of time to plead. On April 14, 1960, the respondent filed his motion for a more definite statement and the appellant responded with a motion to strike on the grounds of timeliness. The motion to strike was overruled, and the motion to make more definite and certain was sustained, whereupon the appellant filed her amended petition on May 19, 1960. This petition, in its allegations pertinent to this appeal, stated the previously filed petitions and cross-bill, recited the plan for reconciliation pursuant to which appellant had dismissed her earlier action that did not go to trial, and alleged that during the meetings called for by this reconciliation plan appellant treated respondent with kindness and affection, but that respondent during these meeting, and at other times since their separation on November 1, 1958, rendered to her '* * * indignities which made the marriage and the reconciliation attempt impossible and thus plaintiff's position intolerable * * *.' The amended petition then set out the occurrences at the meetings between the parties that she alleged as constituting indignities. There are eight of these occurrences alleged. First, appellant alleged that respondent stated that she would have to cooperate in refinancing the family home with a view toward increasing the indebtedness so as to improve the home and purchase an automobile for respondent as a prerequisite to any attempt at reconciliation. This dispute about refinancing the house was on the subject of another alleged indignity in that during another meeting of the parties pursuant to the reconciliation agreement the appellant asked the respondent to list his outstanding bills so she could decide about the advisability of refinancing. The respondent allegedly refused to do so and became abusive and so excited that it was necessary to stop the automobile in which they were riding. This time the argument continued when they got home, and upon appellant's continued refusal to agree to refinancing without further explanation of its necessity, respondent allegedly ordered her from their meeting place and told her not to return until she was ready to agree to the refinancing. The same subject matter resulted in another occurrence which appellant alleges as an indignity in that at another meeting, the argument on refinancing evidently waxing hot, the respondent became abusive and told her to take their elder son shopping and then return. Upon her return she was forcibly ejected from the house where they were meeting, and upon hearing her tell their son to go to the neighbor to stay until time to go to a Cub Scout meeting, respondent rushed from the house '* * * and in loud and excitable tones told her that she should not come back to the house, that he would never permit her to have their children, that he would bar the door of their residence to her and that if she did approach the house he would call the police to have her arrested. He did, however, make this contingent upon her participating in said refinancing.' It was further alleged as an indignity that at a meeting at a drive-in restaurant, the subject of refinancing being discussed, the respondent became 'abusive and excitable' and upon driving home told appellant 'not to come to the house or to see him again.'

Other indignities alleged, not arising from the refinancing, were that respondent took the appellant to the fur department of a department store and stated he wanted to buy her an expensive coat. When she replied that she much preferred a washing machine '* * * he became quite excited and abusive and did speak in very loud tones within the department store very much to the embarrassment of plaintiff [appellant]'; that on this same occasion while they were driving home respondent allegedly '* * * again was abusive and excitable and used obscene and derogatory language to plaintiff [appellant]', and that it became necessary to stop the car and respondent got out; that the day before Christmas their elder son asked her to take him to Mexico, Missouri, and that when she called for him, respondent refused to go along, whereupon appellant and the elder son presented the respondent with a suede jacket which she had purchased for him and a hanger for it which the son had made, and the respondent threw them at appellant and their son '* * * in a scene of most violent rage and abusive language'; and that when the boy was returning from Mexico, Missouri by train, the respondent called the appellant and requested that she meet the train, and that upon doing so she found the respondent present and that he 'pushed ahead of her to greet said son before she could', grabbed him by the arm and refused to let him greet the appellant. Appellant further alleged that respondent '* * * did not at any time state that he had any personal affection, feeling or love for plaintiff [appellant]' but always stated in their conversations that it was appellant's duty to return to him, and that as a prerequisite for permitting her to do so she must agree to the refinancing of their home but that she does not know what the extent of his indebtedness is. Appellant prayed for a divorce, custody and support of the three minor children, suit money, attorney's fees and permanent alimony. There was no allegation in the amended petition that the appellant was the injured and/or innocent party.

On May 27, 1960, the respondent was granted thirty days additional time in which to plead. On June 1, 1960, the appellant not having had notice of the extension of time granted and more than ten days having elapsed since the filing of the amended petition filed her request for default on inquiry based upon Rule 55.27(c), Rules of Civil Procedure, V.A.M.R. This motion was denied by the trial court. Then on June 28, respondent filed another motion for a more definite statement and accompanied if with a motion to dismiss. The motion to dismiss stated numerous grounds why it was contended that the appellant failed to state a claim upon which relief could be granted. It was alleged that the judgment denying either party a divorce entered in the prior action was res judicata of '* * * any issues tendered * * *' in the amended petition and also 'res adjudicata * * * of any issues which might have been tendered to the Court * * *' in that action '* * * whether or not they were in fact tendered to the Court in said case.' Secondly, the motion alleged as a ground that the plaintiff was not in fact a resident of this state one whole year next previous to the filing of her petition as she had alleged, but in fact resided in Montgomery, Alabama, less than one year before its filing. Third, the motion to dismiss also alleged that appellant's petition '* * * is frivolous and vexatious * * *'; fourth, that the petition fails to state a cause of action because these alleged indignities took place after the separation of the parties; and lastly, that the appellant did not allege she was and in fact is not the injured and innocent party and therefore can not be granted the divorce. The motion prayed for a dismissal with prejudice. The trial court sustained the motion to dismiss and this appeal followed. No motion for new trial or any other after trial motion was ever filed, only a notice of appeal following the court's order of dismissal.

The order of the trial court dismissing the appellant's petition is not set out in the transcript, but the motion prayed for a dismissal with prejudice and the trial court's statement was 'Motion to dismiss sustained and costs taxed against the plaintiff.' It was a dismissal with prejudice operating as an adjudication upon the merits and is a final judgment from which an appeal can be taken. Sec. 510.150 RSMo 1959, V.A.M.S.

The appellant's allegations of prejudicial error fall into two general categories. She first contends that the trial court prejudicially erred in overruling appellant's motion to strike the respondent's motion for a more definite statement which the respondent filed on April 14, and also prejudicially erred in sustaining such motion of respondent. The appellant bases her position on Rule 55.36, Missouri Rules of Civil Procedure, V.A.M.R., which provides that all motions made shall be made within the time allowed for responsive pleading, or, if no responsive pleading is permitted, then within twenty days after the service of the last pleading. The appellant's theory of this assignment is that the trial court overruled the prior motion to dismiss on April 5, and gave no extension for time to plead and that while the record does not disclose the date of service upon respondent, even if the date most favorable to respondent is considered, that is the date respondent filed his motion to dismiss on February 16, the respondent was clearly out of time as to the filing of the motion for a more definite statement on April 14, and the...