Grant v. Grant
| Decision Date | 15 May 1959 |
| Docket Number | No. 7790,7790 |
| Citation | 324 S.W.2d 382 |
| Parties | Polly Maranda GRANT, Plaintiff-Appellant, v. Henry Sherman GRANT, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
James V. Billings, Kennett, for appellant.
No appearance for respondent.
Plaintiff appealed from a judgment of the Circuit Court of Dunklin County, Missouri, dismissing her petition for divorce for the reason that plaintiff did not reside in Dunklin County at the time of the filing of the petition and had not resided in the state for at least two years.
Polly Maranda Grant, plaintiff, and Henry Sherman Grant, defendant, were married in Arkansas in 1929 and moved to Missouri in 1953, where they were living at the time of separation. Marital difficulties arose and plaintiff filed her action for divorce August 14, 1955, in the Circuit Court of Dunklin County, charging her husband with numerous indignities which she alleged rendered her condition as defendant's wife intolerable; among the indignities alleged were that defendant, in 1954, was confined in a sanitarium in Mt. Vernon; that while he was so confined plaintiff was forced to work to support the family; that defendant fiercely resented the fact that plaintiff worked for others instead of nursing him; that from February, 1955, to date of separation defendant continually quarreled at, berated and abused her; that on August 14, 1955, he violently assaulted plaintiff with a weapon, threatened to kill her, to knock off her head and ordered her to leave the home; that he kicked her, which conduct caused her to leave.
The petition alleged that plaintiff has been a resident of Dunklin County for more than one year next before the filing of the petition.
Entry of appearance and waiver of service was filed by the defendant who did not appear at the trial and the cause was submitted to the court on plaintiff's evidence.
February 9, 1959, the court entered final judgment to wit: 'Now on this day, petition herein is dismissed by the Court, because at the time of filing of petition, plaintiff did not reside in this State and had not so resided for at least two years.'
Errors assigned are: that the judgment was totally unsupported by the evidence; that all the evidence establishes that plaintiff has kept and maintained her legal residence in Senath, Dunklin County; that she at no time changed her residence from Dunklin County while absent therefrom temporarily from the state, working.
The testimony offered showed that plaintiff and the defendant were married in Lake City, Arkansas, December 13, 1929, and lived together until August 14, 1955. At time of separation they were living about one-fourth mile from Allen Island School in Dunklin County. In 1953, defendant was pronounced T. B. and went to Mt. Vernon Sanitarium. Plaintiff was a practical nurse and had been taking care of old folks; that while defendant was in the sanitarium plaintiff worked at a restaurant in the daytime and cared for her children at night. Plaintiff testified that when her husband returned from Mt. Vernon in the spring of 1954 he continually berated and abused her for not caring for him while in the sanitarium; that on August 14, 1955, she returned home from work and the defendant started in on her, told her he was going to kill her, grabbed up a stick and said he would kill her; that her son stepped in and caught his hand. She testified that defendant threatened to knock her head off; that she started to leave and got out in the yard and defendant told her if she did not go back in the house he would kick hell out of her; that he had ordered her to leave. She stated that defendant slept in the car all night and the next morning she left and they had not lived together as man and wife since. There is no controversy that sufficient evidence was offered to justify the granting of the divorce.
As to residence, plaintiff's evidence is as follows:
'Q. Now, you state here that you moved to this county in 1953? A. That's right.
'Q. And you allege here that you are a resident of Dunklin County, Missouri, and have been for more than a year before the filing of this petition? A. Yes.
'Q. Are you a resident of this county? A. Yes, I call this my home. I keep my stuff at my sister's, Senath, Missouri.
'Q. Is all it at her home? A. Some of it's at Gladys Jordan's home.
'Q. Where does she live? A. She lives in Senath.
'Q. And have you ever voted anywhere else? A. No '
Witness testified that her work took her to other cities. The court asked the witness these questions:
At the end of this examination by the court he stated that he thought proper residence had not been made.
Vernie Sutton testified for plaintiff that she lived on Karnes Street in Senath and has lived there since 1955. She stated:
.
The evidence of this witness was to the effect that part of plaintiff's goods were stored at Gladys Jordan's place just two houses from where the witness lived. This evidence was given:
Myrtle George testified that she lived on South Senath, Karnes Street and has known plaintiff for ten years; that her home is two houses from the Sutton home. She testified to the good reputation of plaintiff for being an upright, moral virtuous woman and stated that her reputation was good. She gave this evidence:
John Davis testified that he had known plaintiff since 1934 or '35 and had seen her in Senath lots of times, she and her husband.
Other evidence was offered as to the good reputation of plaintiff for being a good, moral, upright person.
The sole issue before this court for judgment is, did the trial court err in dismissing plaintiff's petition for reason that she failed to offer sufficient evidence to show that she was a resident of Dunklin County, and of the state, for one year prior to the date of the filing of the petition as required by section 452.050 RSMo 1949, V.A.M.S.?
Section 452.050 RSMo 1949, V.A.M.S. reads: 'No person shall be entitled to a divorce from the bonds of matrimony who has not resided within the state one whole year next before filing of the petition, unless the offense or injury complained of was committed within this state, or while one or both of the parties resided within this state; provided, however, that when the plaintiff shall have resided within this state one whole year next before the filing of petition and the defendant shall plead and prove sufficient facts, as provided in this chapter, which shall entitle such defendant to a divorce, the same shall be granted although the defendant may not be a resident of this state prior to or at the time such divorce be granted.'
It is the duty of the court of appeals in a divorce action to review the case upon both the law and evidence and reach its own conclusion, but the court is not authorized to set aside a judgment unless clearly erroneous and due regard must be given the trial court to judge of the credibility of the witnesses. Phelps v. Phelps, 241 Mo.App. 1202, 246 S.W.2d 838; Paxton v. Paxton, Mo.App., 319 S.W.2d 280; section 510.310, subd. 4 RSMo 1949, V.A.M.S.
The question of whether the wife met necessary residential requirements is one of fact to be determined in the first instance by the trial court. May v. May, Mo.App., 294 S.W.2d 627, 634[2-7].
It is not essential that the...
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