Gerke v. Gerke

• Decision Date: 10 March 1890
• Citation: 13 S.W. 400,100 Mo. 237
• Parties: Gercke v. Gercke, Appellant
• Court: Missouri Supreme Court

13 S.W. 400

100 Mo. 237

Gercke v. Gercke, Appellant

Supreme Court of Missouri

March 10, 1890

Rehearing Denied 100 Mo. 237 at 242.

Appeal from St. Louis City Circuit Court. -- Hon. James A. Seddon Judge.

Affirmed.

C. A Schnake, M. Kinealy and J. R. Kinealy for appellant.

(1) This court will examine the evidence adduced below. (2) The charges on the petition are not sustained by the evidence, and her alimony should, therefore, be a minimum amount. Ensler v. Ensler, 72 Iowa 159; Allen v. Allen, 2 Cent. Rep. 390. (3) Plaintiff has voluntarily separated herself from her husband without sufficient cause, and this must weigh in passing on her claim for alimony. Vanduzar v. Vanduzar, 70 Iowa 614. (4) She still retains her inchoate dower right in defendant's real estate. Rea v. Rea, 5 West. R. 911. And this ought to be considered in fixing alimony. (5) She has five hundred dollars' worth of property, and this ought to be considered in fixing alimony. 2 Bishop on M. and Div., sec. 275, p. 319; Westerfield v. Westerfield, 3 N.J.Eq. 196; Collins v. Collins, 80 N.Y. 11-12; Daniels v. Daniels, 9 Col. 150. (6) The alimony is excessive on the evidence adduced. Wallingford v. Wallingford, 6 Har. and J. 488; Crews v. Morley, 74 Mo. 29; Stittman v. Stittman, 99 Ill. 196; Brown v. Brown, 22 Mich. 245; Clarkson v. Clarkson, 20 Mo.App. 95; Gardner v. Gardner, 54 Ga. 561; 2 Bish. on M. and Div., sec. 463, p. 398; Hopkins v. Hopkins, 39 Wis. 171; Campbell v. Campbell, 37 Wis. 523; Andrews v. Andrews, 69 Ill. 609; Abey v. Abey, 32 Iowa 576; Rea v. Rea, 5 West. R. 911. (7) Extravagant allowances of alimony are against public policy. Williams v. Williams, 29 Wis. 530. (8) The order for alimony pending appeal was not based on any evidence and was excessive.

Lubke & Muench for respondent.

(1) The two causes of divorce alleged in the petition are amply sustained by the proof. The cruelties and indignities are confessed, and as to the charge of adultery the proof not merely fills, but overflows, the measure insisted on by the law. 2 Bish. Mar. & Div., secs. 613, 616, and 620 to 625, and cases cited. (2) The statutes of this state expressly permit the allowance of alimony in gross, and defendant himself requested it to be allowed in that way. He cannot now complain of the mode of allowance. In fixing alimony in gross, the rule is never to allow less than one-third of the husband's estate, and rarely more than one-half; subject to be varied by peculiar conditions, such as aggravating conduct of the husband, his ability to earn more, the physical condition of the wife, her separate estate, or the necessity of supporting infant children. Under the authorities and the peculiar facts of this case, the allowance was exceedingly moderate. Crews v. Morley, 74 Mo. 29; Tyler on Infancy & Cov. [2 Ed.] pp. 906-7, and cases cited; Becker v. Becker, 79 Ill. 532; Ressor v. Ressor, 80 Ill. 442; McClung v. McClung, 40 Mich. 493; 2 Bish. Mar. & Div., secs. 445, 446, 450. The amount of personalty retained by her was insignificant, and her dower-interest is of no value whatever, as, according to the life-tables, it will never become consummate. (3) The finding of the chancellor in equity causes will be deferred to by the supreme court, unless he has manifestly disregarded the evidence. His opportunities for judging of the credibility of witnesses and to solve conflicts of evidence are necessarily more favorable than those of the appellate tribunal. Snell v. Harrison, 83 Mo. 652; Erskine v. Lowenstein, 82 Mo. 301; Judy v. Bank, 81 Mo. 404; Bank v. Murray, 88 Mo. 191; Hendricks v. Woods, 79 Mo. 590; Chapman v. McIlwrath, 77 Mo. 38. (4) The allowance of alimony pending the appeal was made just after the court had made the most exhaustive investigation of the affairs of these parties. To have again heard the same evidence and invited further perjury from defendant would have been worse than useless; and the law does not require the performance of a useless thing. That order, however, directed that the payments pendente lite should be deducted from the gross sum of alimony decreed, and the defendant having succeeded by an appeal in staying the performance of that order during the very time for which it was intended, its only function now is to stand as an additional reason why the judgment of alimony in gross should not be disturbed.

OPINION

Brace, J.

-- This is an appeal from the judgment of the circuit court of the city of St. Louis, in which the plaintiff was, by the decree of said court, granted a divorce from her husband, the said Henry Gercke, defendant, allowed alimony in gross in the sum of six thousand dollars, one hundred and seventy-five dollars attorney's fees and pendente lite the appeal thirty-five dollars per month to be credited on the alimony in gross. The defendant appealed not only from the allowance in gross, but from the allowance pendente lite, gave bond, and has paid nothing on account of alimony pending the appeal to entitle him to a credit on the amount allowed the plaintiff in gross, in lieu of alimony. In his brief he says: "The defendant does not seek to disturb the decree of divorce but contends that the award of alimony ought to be set aside," and the only question presented is whether the allowance in gross in lieu of alimony is excessive.

The plaintiff at the date of the trial was fifty-seven years old and in delicate health. The defendant was fifty-four years old, in robust health and engaged in a profitable business. They had been married and had lived together as husband and wife for about thirty-three years; by their industry and economy the defendant had accumulated an estate estimated to be worth from ten to fifteen thousand dollars. The plaintiff had always faithfully demeaned herself, and discharged all her duties to the plaintiff as his wife; nevertheless the defendant, as the evidence shows, and as the trial court found, was not only guilty of indignities to her person, by brutal and unprovoked assaults upon her, but of the highest crime against the marital relation, that of adultery. They have no minor children dependent upon...