Franklin v. Franklin, No. 44830
| Court | United States State Supreme Court of Missouri |
| Writing for the Court | HOLLINGSWORTH |
| Citation | 365 Mo. 442,283 S.W.2d 483 |
| Parties | Celeste FRANKLIN, Respondent, v. Odell FRANKLIN, Appellant. |
| Docket Number | No. 44830 |
| Decision Date | 14 November 1955 |
Page 483
v.
Odell FRANKLIN, Appellant.
Page 484
Frank Mashak, St. Louis, for appellant.
[365 Mo. 444] Sanford E. Wool, St. Louis, for respondent.
HOLLINGSWORTH, Judge.
Odell Franklin, defendant, appealed to the St. Louis Court of Appeals from an order of the Circuit Court of the City of St. Louis allowing plaintiff, Celeste Franklin, $150 attorney's fee and temporary alimony in the sum of $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 Constitution, V.A.M.S.
[365 Mo. 445] The facts are well stated in the opinion of the Court of Appeals, to which reference is made. They need not be again set forth herein. The essential question presented is whether, after refusing to answer certain interrogatories propounded to her under the discovery provisions of the civil code, Sections 510.020 and 510.060 RSMo 1949, V.A.M.S., or to orally testify as to the status of her prior marriage to one Ivory Shelly, on the ground her answers might tend to incriminate her, plaintiff is entitled to maintain an action for divorce or a motion for temporary alimony.
Page 485
The right of divorce is predicated upon and presupposes a valid marriage, 27 C.J.S., Divorce, Sec. 1, p. 521, and a motion for temporary alimony, in cases where the marriage is not admitted, must be supported by prima facie proof of the marriage. Hill v. Hill, Mo.App., 236 S.W.2d 394, 400; 27 C.J.S., Divorce, Sec. 208 b(1), c(1, 2), pp. 895-897. Good faith of the applicant is also a necessary element of such a motion, Brinker v. Brinker, 360 Mo. 212, 227 S.W.2d 724, 727; this latter element being ordinarily, but not necessarily, determined from the pleadings, 27 C.J.S., Divorce, Sec. 208 g, pp. 899-900. And, ordinarily, upon prima facie showing of marriage, the wife's motion for temporary allowances will be sustained if otherwise meritorious, even though the husband tenders an issue of the validity of the marriage; this, for the reason that to deny the motion might foreclose the wife of the means with which to establish her contention that the marriage was valid. Carroll v. Carroll, 68 Mo.App. 190, 193-194; Ascher v. Ascher, 202 Mo.App. 622, 216 S.W. 576, 578. We are convinced, however, that the state of the record in this case is such that the motion should not in justice to defendant be considered without regard to plaintiff's right to maintain her case on the merits. Upon service of the petition, defendant promptly sought discovery from plaintiff as to when and where she was married to Shelly and when, where and in what court she was divorced from him. At first, plaintiff sought to avoid the issue entirely but, upon being ordered to answer such interrogatories under penalty of dismissal of her action, she claimed the priviege of not answering, on the ground that to do so might tend to incriminate her. This privilege she likewise claimed at the hearing of her motion for temporary allowances. Thus, it seems, at least prima facie, that plaintiff refused to disclose...
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Tug Valley Pharmacy, LLC v. All Plaintiffs Below in Mingo Cnty., No. 14–0144.
...v. Christenson, 281 Minn. 507, 162 N.W.2d 194 (1968) ; Annest v. Annest, 49 Wash.2d 62, 298 P.2d 483 (1956) ; Franklin v. Franklin, 365 Mo. 442, 283 S.W.2d 483 (1955) ; Lyons v. Johnson, 415 F.2d 540 (9th Cir.1969), cert. denied, 397 U.S. 1027, 90 S.Ct. 1273, 25 L.Ed.2d 538 (1970) ; Brown v......
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Griffith v. Griffith, No. 2890.
...194 (1968) (plaintiff required to waive privilege against self-incrimination or have divorce action dismissed); Franklin v. Franklin, 365 Mo. 442, 283 S.W.2d 483 (1955) (en banc) (complaining spouse's refusal to answer questions at support hearing justified striking of spouse's pleadings); ......
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Bramble v. Kleindienst, No. C-4549.
...proceeding to obtain information relevant to the cause of action alleged, and possible defenses thereto. (See, also, Franklin v. Franklin, 365 Mo. 442, 283 S.W.2d 483; Hazlett v. Bullis, 12 A.D. 2d 784, 209 N.Y.S.2d 601 2 Dept 1961);" Laverne v. Incorp. Village of Laurel Hollow, 18 N.Y.2d 6......
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Mahne v. Mahne
...(Sup.Ct.1958), aff'd, 7 A.D.2d 995, 183 N.Y.S.2d 868, aff'd, 6 N.Y.2d 892, 190 N.Y.S.2d 702, 160 N.E.2d 921 (1959); Franklin v. Franklin, 365 Mo. 442, 283 S.W.2d 483 [328 A.2d 228] In Christenson the plaintiff wife sued for divorce charging extreme cruelty. The defendant husband denied the ......
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Tug Valley Pharmacy, LLC v. All Plaintiffs Below in Mingo Cnty., No. 14–0144.
...v. Christenson, 281 Minn. 507, 162 N.W.2d 194 (1968) ; Annest v. Annest, 49 Wash.2d 62, 298 P.2d 483 (1956) ; Franklin v. Franklin, 365 Mo. 442, 283 S.W.2d 483 (1955) ; Lyons v. Johnson, 415 F.2d 540 (9th Cir.1969), cert. denied, 397 U.S. 1027, 90 S.Ct. 1273, 25 L.Ed.2d 538 (1970) ; Brown v......
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Bramble v. Kleindienst, No. C-4549.
...proceeding to obtain information relevant to the cause of action alleged, and possible defenses thereto. (See, also, Franklin v. Franklin, 365 Mo. 442, 283 S.W.2d 483; Hazlett v. Bullis, 12 A.D. 2d 784, 209 N.Y.S.2d 601 2 Dept 1961);" Laverne v. Incorp. Village of Laurel Hollow, 18 N.Y.2d 6......
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Griffith v. Griffith, No. 2890.
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Mahne v. Mahne
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