Franklin v. Franklin
| Decision Date | 21 December 1954 |
| Docket Number | No. 29003,29003 |
| Parties | Celeste FRANKLIN (Plaintiff), Respondent, v. Odell FRANKLIN (Defendant), Appellant. |
| Court | Missouri Court of Appeals |
Frank Mashak, St. Louis, for appellant.
Sanford E. Wool, St. Louis, for respondent.
HOUSER, Commissioner.
This is an appeal by Odell Franklin from an order of the Circuit Court of the City of St. Louis allowing his wife Celeste the sum of $10 per week alimony pendente lite and an attorney's fee of $150.
On May 6, 1953 Celeste Franklin filed her petition for divorce alleging that she was lawfully married to Odell Franklin at Charleston, Missouri on April 6, 1929 and that she continued to live him as his wife until September 19, 1952. After service of process the husband filed interrogatories to plaintiff by which inquiry was made concerning plaintiff's previous marriage to one Ivory Shelly and asking for the time when and the place where she was divorced from Shelly. Plaintiff filed a motion to dismiss the interrogatories alleging that she did not have available the answers to the questions and that their answer would require an unduly burdensome investigation which would require additional time, but if the court deemed the interrogatories to be proper she moved for additional time to answer. The motion was heard and the then-presiding circuit judge ordered plaintiff to answer the interrogatories by June 22, 1953 or her cause of action would be dismissed. On June 23, 1953 plaintiff filed an 'answer' to the interrogatories in which she stated that on advice of counsel she refused to answer on the ground that the answers might tend to incriminate her. On the same date defendant filed his answer to the petition, in which he admitted nothing except the residence of plaintiff and the fact that no children were born of the 'cohabitation,' and denied every other allegation. He also filed a cross-bill for divorce in which he alleged that on April 6, 1929 a marriage ceremony was performed between the parties, and that he lived with plaintiff as her husband from that time until September 19, 1951, but charged that the 'marriage' was bigamous for the reason that on April 6, 1929 plaintiff was married to another man from whom she was not divorced.
On May 22, 1953 plaintiff filed a motion for temporary allowances. At the hearing of that motion on September 4, 1953 plaintiff testified that she was married to Odell Franklin on Paril 6, 1929. She further testified to the separation, her financial needs, and that her husband was working for the Mississippi Glass Company, making $60-65 a week when he left home. On cross-examination by defendant's counsel she was asked whether she had been previously married. The court overruled an objection to this question, whereupon plaintiff's counsel instructed the witness to refuse to answer on the constitutional ground that she might incriminate herself. At the court's direction she answered 'Yes.' To questions as to the place of the marriage, the birth of a child of the marriage, the name of the street in Cincinnati, Ohio where they lived together, and whether plaintiff ever filed a divorce suit against Ivory Shelly, plaintiff's counsel interposed objections and advised the witness to refuse to answer on the constitutional ground. All of these objections were overruled, and in each instance the witness was directed to answer. Those answers revealed that plaintiff was married to Shelly in Arkansas in February, 1923; that a child, Ivory Shelly, Jr., was born of that marriage; that the parties lived together until November, 1926, and that plaintiff never did file a suit for divorce from Shelly. A certified copy of the marriage license and certificate of solemnization of the marriage of plaintiff and Ivory Shelly was admitted in evidence overy plaintiff's objection. After this had transpired defendant's counsel asked plaintiff whether she was ever divorced from Ivory Shelly. Plaintiff's counsel objected on the constitutional ground and the court sustained the objection. Thereupon defendant's counsel made an unsworn statement to the court that he and the defendant had made a trip to Cincinnati, Ohio during the previous week and had obtained an affidavit from Ivory Shelly that he had never obtained a divorce from plaintiff. The affidavit was not produced, and defendant presented no evidence in support of his statement whatever or in defense of plaintiff's motion. Later the affidavit and an application for a dedimus for a commission to take the deposition of Ivory Shelly was filed but, not having been acted upon, was subsequently withdrawn by defendant. On September 11, 1953 defendant filed a motion to dismiss plaintiff's petition for failure to comply with the order of July 12, 1953 requiring plaintiff to answer the interrogatories. This motion was heard and denied. On November 28, 1953 plaintiff's motion for alimony pendente lite and attorney's fees was sustained. This appeal followed plaintiff's unsuccessful effort to have the order of November 28, 1953 vacated, or in the alternative to obtain a new trial.
Defendant's first point is that the record does not show his income as of the date of the hearing of the motion for temporary allowances, September 4, 1953. This point is ruled against defendant for the reason that the record shows that defendant was working for the Mississippi Glass Company, and was making $60-65 a week when he left home. The fact that he was employed at that rate of pay prior to the hearing authorized the inference that he was still so employed at the time of the hearing, in the absence of evidence on the part of defendant to the contrary. Kinsella v. Kinsella, Mo.App., 60 S.W.2d 747, loc. cit. 748.
Defendant next asserts that plaintiff was required to make a prima facie case in support of a valid marriage before the court could allow alimony pendente lite and suit money and that plaintiff failed to sustain that burden. Defendant correctly states the law, Hill v. Hill, Mo.App., 236 S.W.2d 394; Carroll v. Carroll, 68 Mo.App. 190, but we are of the opinion that plaintiff satisfied the...
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Franklin v. Franklin
...$10 per week during the pendency of her action against him for divorce, which order was by the Court of Appeals affirmed. Franklin v. Franklin, Mo.App., 273 S.W.2d 737. On application of defendant the cause was transferred to this court under the provisions of Art. V, Sec. 10, of the Consti......
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Sparks v. Sparks
...her motion for temporary allowances was discretionary. In fact, our predecessor, the St. Louis Court of Appeals, in Franklin v. Franklin, 273 S.W.2d 737, 741 (Mo.App.1954) found no abuse of trial court discretion and affirmed the trial court's award. The Missouri Supreme Court in the second......