Gregg v. Gregg
| Decision Date | 05 June 1967 |
| Docket Number | No. 24574,24574 |
| Citation | 416 S.W.2d 672 |
| Parties | Mary Ellen GREGG, Plaintiff-Respondent, v. Paul W. GREGG, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
John C. Russell, Kansas City, for appellant.
C. William Kramer, Piedimonte & Cochran, Independence, for respondent.
This suit for divorce was filed by plaintiff Mary Ellen Gregg. Her petition is grounded on allegations that her husband, the defendant Paul W. Gregg, subjected her to general indignities. Defendant's only pleading is in the nature of a general denial praying that plaintiff be denied a decree of divorce. He has sought no affirmative relief for himself. Trial on December 27, 1965 resulted in a judgment granting plaintiff a divorce and awarding her $75.00 per month alimony. Defendant timely filed a motion for a new trial which the trial court overruled.
Defendant gave notice of an appeal from the 'Order Overruling Defendant's Motion for a New Trial.' The action of the trial court in overruling a motion for a new trial is not an appealable order. The appeal should have been taken from the judgment and not from the order overruling the motion for new trial. Civil Rule 82.04, V.R.M.R. However, instead of dismissing the appeal we shall consider that defendant intended and in good faith attempted to appeal from a final judgment and that the notice of appeal inadvertently designated the order overruling the motion for a new trial, instead of the judgment of the court, as the judicial act from which the appeal was intended to be taken, and it will be so treated. State v. Kendrick, mo.Sup., 383 S.W.2d 740; Triller v. Hellwegge, Mo.Sup., 374 S.W.2d 104.
Defendant's appeal complaints are (1) that plaintiff did not prove herself to be the innocent and injured party 'because of acts of infidelity' and (2) because the evidence 'strongly indicated that at best, from plaintiff's standpoint, both parties would be entitled to a divorce and, therefore, a divorce should not have been granted to plaintiff'. He does not contend that she lacked sufficient grounds for divorce and makes no complaint in respect of the allowance of alimony awarded her by the trial court. As provided by Civil Rule 73.01(d) V.A.M.R., it is our duty to review the whole record in this nonjury case and reach our own conclusions both on the facts and the law. The judgment will not be set aside unless clearly erroneous, and we shall give due regard to the opportunity of the trial court to judge the credibility of the witnesses.
The parties were married in October, 1951. At that time plaintiff has custody of six children born to her from two previous marriages. No children were born of her union with defendant. The course of their marriage was interrupted by a number of separations for periods of time varying from several months to five years. According to plaintiff's testimony there were six separations. Defendant placed the number at twelve or thirteen. The longest period of separation was for approximately five years. Both parties testified that they were separated and living apart from each other from 1953 until 1958. Another separation occurred in 1963 some time prior to September. Plaintiff testified that she had then filed a suit for divorce in contemplation of which the parties executed a separation agreement. However, they effected reconciliation and lived together in marital relationship from September until December 25, 1963, but entered into final legal separation on that date. At the time of the trial plaintiff was 49 years old and defendant was 52.
There is evidence that plaintiff had associated with certain other men, and on occasion had 'gone out' with them. This is admitted by plaintiff but she insists that her association with them was only during periods of separation from defendant and did not occur while living with him, and that she committed not act of infidelity with them. There is testimony that during the five year separation another woman lived with defendant for several years in his home at various places. Defendant so admits but claims the relationship was innocent. There is no evidence that either party was improperly associating with other persons after their reunion following the 1953--1958 separation.
To support her allegation of indignities, plaintiff testified that defendant used vile and vulgar language to her in the presence of her children; struck her on several occasions and also struck her daughter; that throughout the marriage defendant drank heavily and was habitually abusive to her and her children; that he continually accused her unjustly of being unfaithful to him, and embarrassed her in the presence of others by such accusations; and, that defendant did not financially support her, and provide her with necessary medical services. In that respect plaintiff testified that she had a condition of health impairment which arose from chronic mastoid infection. She had undergone three surgical operations for implantation of plastic ear drums in both ears and a wire arrangement in her right ear, and she still had to have surgery again on both ears. Her condition required special diet and regular medication. She testified that defendant failed and refused to buy the type of food required by her diet, and in respect to her medical bills she stated, 'No, he hasn't paid one nickel or bought me a nickel's worth of medicine over the time I have been sick', and that defendant has refused to provide funds for the two operations she will have to have. Her medical expenses were paid from the earnings of her own separate seasonal employment in the manufacture of ladies dresses. On occasions prior to the 1963 separation, following plaintiff's visits to her doctor's office, defendant falsely accused her of adultery with the doctor.
Defendant testified he knew of his wife's association with other men during the 1953--1958 separation and that he had tried 'to get her back', but he denied that he accused her of adultery. He did testify, however, that he had talked with plaintiff about 'these men' and that she told him she . Defendant stated that he did not know of any time plaintiff was unfaithful to him other then what she told him about 'these men'. Other admissions made by defendant were: that he had become intoxicated around the house, that he had been abusive to plaintiff, that he had struck plaintiff's daughter, that he had not paid for plaintiff's operations, and that he was 'a pretty jealous man'.
Although defendant's two appeal points bear separate numbers and are couched in somewhat different language, they are counterparts in substance and express the same theme: that plaintiff has not shown herself to be an innocent party as well as an injured party and therefore is not entitled to a decree of divorce, irrespective of his own conduct toward her. Defendant argues that plaintiff's own testimony indicates she was guilty of infidelity 'by being in the company of other men in places where acts of intimacy could well have taken place'. Hence, defendant says, her conduct in that respect was such as to entitle him to a divorce and thereby to operate as a bar to adjudication that she was an innocent party. The foregoing submission invokes well established and often repeated rules of law. It is fundamental that a divorce may be granted only if the party seeking it affirmatively shows that he is both an injured and innocent party; that the requirement of 'innocence' means only that the applicant must show that he himself has not committed any offense which is cause for divorce; that the burden of showing such innocence is an affirmative one resting upon the party seeking divorce; and that where both parties have grounds for divorce, neither party is entitled to the relief. R_ _ v. M_ _, Mo.App., 383 S.W.2d 894. The degree of innocence a party must have to be entitled to a divorce does not mean that his or her conduct toward the spouse on all occasions must be letter perfect and above all reproach. The generally accepted rule is that the conduct of one party will not prevent him...
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