Glenn v. Glenn

• Decision Date: 18 December 1945
• Docket Number: No. 26869.,26869.
• Parties: GLENN v. GLENN.
• Court: Missouri Court of Appeals

192 S.W.2d 629

GLENN v. GLENN.

No. 26869.

St. Louis Court of Appeals. Missouri.

December 18, 1945.

Rehearing Denied January 18, 1946.

Appeal from St. Louis Circuit Court; Joseph J. Ward, Judge.

"Not to be reported in State Reports."

Suit for divorce by Warner Glenn against Lota Glenn. From a judgment for plaintiff, defendant appeals.

Affirmed.

S. C. Rogers, of St. Louis, for appellant.

John W. Joynt, of St. Louis, for respondent.

SUTTON, Commissioner.

This is a suit for a divorce, commenced in the Circuit Court of the City of St. Louis, on May 11, 1944. The petition charges desertion. The answer consists of a general denial, charges of mistreatment of defendant by plaintiff, and a plea of res adjudicata. The reply is a general denial. The trial resulted in a judgment granting plaintiff a divorce. Defendant appeals.

Respondent and appellant were married in 1921 at Warrensburg, Missouri. At the time of their separation and for a long time prior thereto they resided in Kansas City in a home which they owned. Appellant's mother, Mrs. Frances Delane, lived with them. She was a dentist and was in comfortable financial circumstances. Respondent was in the employ of the National Shirt Company, which owned and operated a chain of stores in Missouri, Colorado, Indiana, Kentucky, Michigan, and perhaps other states. It had three stores in St. Louis and one in Kansas City. Respondent was in the employ of the company many years and was in charge of its store in Kansas City while he was living there. Prior to the separation he was promoted to district manager. At that time the middle western office of the company was in St. Louis, and the company desired him to live in St. Louis. In compliance with this desire, he changed his residence to St. Louis, occupying a room in the Statler Hotel. This change was made in January, 1939. Appellant did not come with him to St. Louis, but continued to live in the home in Kansas City. However, during the year 1939, respondent frequently went to Kansas City and spent the weekends in the home there with the appellant, and sent her regularly during the year $100 per month for household and other expenses, and she also received from her mother $100 per month. Respondent's salary was $333 per month less deductions. As late as January 1, 1940, respondent mailed appellant a check for $120. Of this amount $20 was to pay for a telephone conversation which appellant had with his employer in New York while visiting in the home in Kansas City.

Respondent testified that before he changed his residence to St. Louis, and afterwards also, he had frequent conversations with appellant, explaining to her that it would greatly advantage him in his employment, and that his prospects for further promotion would be greatly enhanced, by complying with the wishes of his employer, and that the change of his residence to St. Louis was imperative by reason of his new position as district manager, but that she persisted to the last in refusing to come with him to St. Louis, telling him she would not leave her mother, who, she stated, was in ill health. He ceased his remittances to her with the check for $120 sent her on January 1, 1940, and also ceased his visits to the home in Kansas City.

On June 4, 1940, about five months after respondent's last remittance, appellant, by her petition, sworn to on May 15, 1940, commenced a suit for a divorce in the circuit court at Kansas City. In her petition she charged respondent with intolerable indignities in that he told her he no longer loved her and would no longer live with her, and on May 1, 1939, left her and declined and refused to live with her further as man and wife, and declined and refused to support her.

To that petition respondent filed an answer consisting of a general denial and cross-bill praying for a divorce on the ground of desertion. The reply was a general denial.

The trial was had in that case on March 28, 1942, and resulted in a judgment dismissing appellant's petition and respondent's cross-bill. From that judgment the wife appealed to the Kansas City Court of Appeals. On April 3, 1944, her appeal was dismissed for failure to comply with the rules. The mandate went down and was filed in the circuit court on April 14, 1944.

On June 12, 1942, about two and one-half months after the rendition of the judgment in the circuit court at Kansas City, respondent wrote appellant seeking a reconciliation. He concluded the letter as follows: "If you feel that you want to come here and try to make a home for us I will make arrangements as soon as possible. We would have to live in a furnished apartment for a while until the war situation is straightened out. This should be a good time to sell the house as there is a shortage of houses now. If you are now willing to try all over again we will forget the past, but please do not tell me that it will be alright and not mean it as this only means additional expense and worry."

In a postscript to this letter respondent asked appellant why she had not cashed his check for $50 which he had sent her the previous month.

On June 15, 1942, appellant answered this letter as follows: "I have not received the fifty dollar check that you say you sent me in May. The last check I received from you was in March. Will you go to the bank and stop payment on that check and mail me another one?"

In response to this letter respondent, on June 19, 1942, sent appellant a check for $50 enclosed with a letter in which he said:

"Here is a fifty dollar check to take the place of the one that you say you did not get. You did not say anything in your letter about coming to St. Louis to live. Does this mean that you want to give it further consideration, or that you won't consider it at all? I want to do what I think is right, but it has been three years since I had to make my office in St. Louis and instead of benefiting by the advancement I have had, I am worse off on account of the expense. I don't think anyone in my place would feel any different about my having to support you in one city and my having to live in a hotel in another city.

"I am sorry I cannot send you more money than this, but it is about all I have except what belongs to the firm. If you write send the letter c/o 718 Washington, St. Louis, and they will forward it to me, as I am going to be out of town for a week or more."

Respondent testified that about two or three days after he mailed this letter and check for $50 to appellant, she called him over the telephone through his employer's store at Detroit, and in the conversation that ensued she told him she was too smart to put in writing that she would not come to St. Louis.

Appellant denied that she refused to come to St. Louis and said that respondent would not allow her to come. She admitted there was a conversation over the telephone as stated by respondent. She denied, however, that she said to him that she was too smart to put in writing that she would not come to St. Louis, but stated that she told him she had not received his check for $50.

Appellant contends that the judgment in her suit in the circuit court at Kansas City dismissing respondent's cross-bill is res adjudicata as to his charge of desertion in this case, and is a bar to this suit. We do not think this is so. The evidence shows that at the time of the commencement of that suit the desertion had not run the full statutory period of one year. Mo.R.S.A. § 1514. Moreover, before the filing of this suit by respondent, desertion had run more than one year after he had, in evident sincerity and good faith, sought a reconciliation following the dismissal of his cross-bill.

Appellant further contends that her suit for a divorce in the circuit court at Kansas City arrested the running of the statutory period of desertion during the pendency of the suit, so that desertion had not run the full statutory period of one year at the time of the commencement of this suit. We do not think her suit had that effect. It could not have that effect unless it was shown that it was begun and prosecuted in good faith, and the burden of proof was on her to so show. Redford v. Redford, 162 Mo.App. 127, 144 S.W. 125. In this case the trial court evidently found that appellant's suit was not begun and prosecuted in good faith, and it is clear that this court ought to defer to the finding of the trial court on that issue.

Appellant calls our attention to a statement made by respondent, when testifying in appellant's suit in the circuit court at Kansas City, in response to a question by the judge, as follows: "Your Honor, I feel this way. I feel that all of the things I have gone through now, the letter she read a while ago — I would like to comment on that letter — and, after all the things that have been done to humiliate me and everything, I don't believe we can be happy together. I don't believe it would be possible."

Appellant urges that this statement shows that respondent at that time was unwilling to have his wife return to him and live with him as his wife. We must have regard for the circumstances under which this statement was made. The trial of the suit of the wife for a divorce, on unjust and unfounded charges, was in progress. Such charges on the part of the wife against her husband in an effort to obtain a divorce from him would naturally affect his emotions and excite in him the feeling he expressed. We do not think his statement, made under such circumstances, closed the door against his wife's return to him, but if it did close the door for the time being his subsequent overtures opened it again, and she still refused to return.

Desertion for more than one year before the commencement of this suit is well shown by the evidence.

Appellant charges, however, that respondent had...