Fielder v. Fielder

• Decision Date: 21 May 1928
• Docket Number: No. 16173.,16173.
• Citation: 6 S.W.2d 968
• Parties: FIELDER v. FIELDER.
• Court: Missouri Court of Appeals

6 S.W.2d 968

FIELDER v. FIELDER.

No. 16173.

Kansas City Court of Appeals. Missouri.

May 21, 1928.

Appeal from Circuit Court, Jackson County; James H. Austin, Judge.

Suit for divorce by Adrienne P. Fielder against Harold G. Fielder. Judgment dismissing her petition, and plaintiff appeals. Affirmed.

Marley & Reed, of Kansas City, for appellant.

Daniel V. Howell and Joshua Barbee, both of Kansas City, for respondent.

ARNOLD, J.

This is a divorce proceeding and is before us on the record proper. In her statement in the brief filed by plaintiff, it is asserted by way of explanation that the stenographer who took the notes at the trial in division No. 9 of the circuit court of Jackson county, Mo., removed from the state immediately after the expiration of the term of the circuit judge before whom the cause was tried, and that he failed and neglected to prepare a bill of exceptions, as ordered by plaintiff. For this reason the cause is submitted to us for review upon the record proper.

We learn from the record proper that the petition was filed on August 25, 1926, in the circuit court of Jackson county, Mo., at Kansas City. The petition alleges that plaintiff and defendant were married on October 10, 1917, in Cook county, Ill.; that they lived together as husband and wife until July 15, 1926; that during all this time plaintiff faithfully demeaned herself and discharged her duties as the wife of defendant, and at all times treated him with kindness and affection; but that defendant continuously, since 1920, has offered plaintiff such indignities as to render her condition intolerable, to wit: That he habitually swore at plaintiff and declared his love and affection for other women; habitually associated with other women and lavished his attentions and affection upon them in public places; urged plaintiff to go out and solicit and assume improper relations with other men; that defendant has struck plaintiff and thrown her violently around the rooms of their home; that he habitually permitted other women to call him up at the home of plaintiff and defendant and urge him to go to them; that defendant swore at and abused plaintiff in the presence of their children; that he has brutally beaten and mistreated the elder of the two children born of the union of plaintiff and defendant; and that he forced a knife into the throat of said child in the presence of plaintiff and guests; that he brutally struck said child with a hair brush across the face with force and violence, to the grief, humiliation, and shame of plaintiff.

The petition states there were born of the said union of plaintiff and defendant two children, now of the ages of eight and two years, respectively; that plaintiff is a resident of Jackson county, Mo., and has been for one whole year next preceding the filing of the petition; that the offenses complained of were committed in Missouri; that defendant received a monthly salary of $425; and that plaintiff is wholly without means of support and for the prosecution of this suit. The prayer is for divorce, the care and custody of the children, and support and maintenance from defendant. The petition is verified by affidavit.

The amended answer admits the marriage and the birth of the children as alleged in the petition, pleads condonement, and makes general denial. The cause was tried in division No. 9 of the circuit court of Jackson county, Mo., at Kansas City. Both parties appeared in person and by their respective attorneys. The court heard the evidence, took the cause under advisement, and on December 28, 1926, rendered the following judgment:

"Now on this day come the parties hereto and by their attorneys, and this cause having been heretofore heard and taken under advisement, and the court now believes there is a chance for a reconciliation between these parties, looking to the welfare of the two children, whereupon the court dismisses plaintiff's petition.

"Wherefore, it is ordered and adjudged by the court that the plaintiff's petition be and the same is hereby dismissed and defendant go hence without day and have and recover from plaintiff all costs herein incurred and have therefor execution."

A motion for a new trial embraced the following: (1) The court erred in admitting incompetent evidence offered by defendant; (2) in excluding competent evidence offered by plaintiff; (3) in denying plaintiff a direct divorce; (4) in refusing plaintiff a decree under the pleadings and evidence; (5) in refusing plaintiff other relief prayed for in the petition; (6) in denying plaintiff's petition for the sole reason that the court believed plaintiff and defendant could become reconciled in the future. The motion was overruled, and plaintiff has appealed.

The errors assigned are: (1) That plaintiff was entitled to a divorce on the record; (2) the judgment as well as the findings as shown by the record are not responsive to the pleadings; (3) it is apparent from the record the court was under the belief it could force a reconciliation by denying plaintiff her lawful right to a decree and the court's action was erroneous. In support of these charges, it is urged that it is apparent upon the face of the record that the decree entered was responsive only to the court's belief that a reconciliation was possible, and it is erroneous because not responsive to the issues made by the pleadings; defendant's amended answer being in the nature of a confession and avoidance.

It is argued that the judgment of the court herein in anomalous; that it is not responsive to any issue tendered by the pleadings. This argument, of course, is based upon that part of the judgment referring to a possible reconciliation and is an assumption that the comment of the court is in fact a necessary and constituent part of the judgment. The Code, both in law and equity cases, demands "a plain and concise statement of facts constituting the cause of action." It follows that the cause of action thus stated and none other constitutes the cause of action. It is true that under the general prayer for relief a party may have any relief to which he may show himself entitled in a cause in equity; but this relief is limited to and founded upon the facts pleaded and...