Farley v. Farley, 26616.
| Decision Date | 03 July 1944 |
| Docket Number | No. 26616.,26616. |
| Citation | 181 S.W.2d 671 |
| Parties | FARLEY v. FARLEY. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; William S. Connor, Judge.
Suit by Lillian M. Farley against Louis A. Farley for separate maintenance. From a judgment for defendant, plaintiff appeals.
Reversed and remanded.
See, also, 181 S.W.2d 675.
A. U. Simmons and Edwin Rader, both of Clayton, for appellant.
E. McD. Stevens, of Clayton, and Charles A. Lich, of St. Louis, for respondent.
BENNICK, Commissioner.
This is a suit for separate maintenance, which was brought by the wife, Lillian M. Farley, against her husband, Louis A. Farley. Judgment was entered in favor of defendant; and plaintiff's appeal to this court has followed in the usual course.
The petition alleged that the parties were married on September 6, 1936, and thereafter lived together as husband and wife until August 24, 1942; that during all that time plaintiff had at all times faithfully demeaned herself, had discharged all her duties as defendant's wife, and had at all times treated him with kindness and affection; but that defendant, wholly disregarding his duties as plaintiff's husband, had abandoned her without good cause on August 24, 1942, and had ever since refused and neglected to maintain and provide for her.
The formal answer was a general denial of each and every allegation contained in the petition. As a matter of fact, however, there was no controversy about the marriage and the subsequent separation; and the actual defense, which defendant, over plaintiff's objection, was allowed to make under his general denial, was that plaintiff had been guilty of a number of specific indignities towards him which had constituted good cause for his abandonment of her.
Plaintiff, prior to her marriage to defendant, was a practicing lawyer in the State of Ohio, and at one time had been employed by the Ohio Industrial Commission, which is the board created for the administration of the Workmen's Compensation Law of that state. She had previously been married to one Harry Grau in the City of Cleveland, from which union there were born two daughters, Audrey and Jean, who were twenty-eight and twenty-six years of age respectively at the time of the trial in the court below. Due to an attack of infantile paralysis in childhood, Audrey, unfortunately, is mentally defective, and of later years has been confined in an institution in Columbus, Ohio, where she is maintained by funds left her by her father, who died in 1939, some years after he and plaintiff had been divorced. Jean had originally resided with her mother in Cleveland; but after the latter's marriage to defendant, she had been employed in Chicago until September, 1940, when she came to St. Louis and permanently established herself with plaintiff and defendant in their home at 7177 Farley Avenue, in St. Louis County.
Defendant is employed as a salesman out of the local district office of the American Can Company, and on occasions is required to leave the city in connection with his business. In addition, the maintenance of friendly relations with his trade involves a certain amount of entertaining for customers of the company, which he does for the most part at country clubs, hotels, and the like, and for which the company allows him an expense account. Indeed, both he and plaintiff are socially inclined; and no little portion of their difficulty together is reflected in charges and countercharges respecting each other's conduct at the club in which they had their membership. Their trouble reached its climax on the night of July 22, 1942, when defendant returned to his home some time after midnight, after having spent the evening with a friend and customer down town. The evidence was in dispute as to whether plaintiff was the aggressor, or whether she acted in self-defense; but at any rate there was a physical encounter between the two, with plaintiff's daughter, Jean, also participating, in the course of which defendant sustained certain painful injuries. The following day he sought the advice of a lawyer; and a month later, or on August 24th to be exact, he left his home while plaintiff was away playing golf, and took up his residence at the Missouri Athletic Club in the City of St. Louis. That afternoon he called plaintiff over the telephone and advised her of his intention not to live with her again; and in due course this action followed for plaintiff's separate maintenance.
The chief point of controversy between the parties is one of the admissibility of evidence under the pleadings, that is, whether it was proper for defendant, having limited himself to a general denial by way of his answer in the case, to be allowed to offer proof of alleged specific indignities on the part of plaintiff in support of his contention that he had had good cause for leaving her so that his subsequent living apart from her and failure to support her did not constitute an abandonment within the contemplation of the separate maintenance statute. Sec. 3376, R.S.Mo. 1939, Mo.R.S.A. § 3376.
The statute provides that when the husband, without good cause, shall abandon his wife and refuse or neglect to maintain and provide for her, the court shall order and adjudge such support and maintenance for her as the nature of the case and the circumstances of the parties shall require. It has been held that as the statute is worded, the absence of good cause on the husband's part is an essential element of the plaintiff's case (Perkins v. Perkins, 236 Mo.App. 616, 157 S.W.2d 253); and the lower court therefore took the position that defendant, under his general denial,...
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