Hawkins v. Hawkins, 8954

Citation462 S.W.2d 818
Decision Date24 December 1970
Docket NumberNo. 8954,8954
PartiesPeggy J. HAWKINS, Plaintiff-Respondent, v. Robert L. HAWKINS, Defendant-Appellant.
CourtCourt of Appeal of Missouri (US)

Bob J. Keeter, Springfield, Joseph S. Levy, Kansas City, for defendant-appellant.

Gerald H. Lowther, Springfield, Edward V. Sweeney, Monett, for plaintiff-respondent.

HOGAN, Judge.

In this divorce action, the trial court has granted the plaintiff a divorce, has awarded her custody of two of the parties' three children, has ordered defendant to pay plaintiff the sum of $350 per month as child support, and has, in its decree, approved a property settlement '* * * dictated into the record by counsel * * * and * * * approved by the respective parties.' The defendant appeals, maintaining: (1) that there was no evidence adduced to support the decree of divorce; (2) that the court erred in awarding custody of the children to the plaintiff; and (3) that the trial court erred in making the property settlement a part of the judgment, 'because the agreement, which affected title to real estate, had not been finalized and reduced to a writing signed by the parties * * *.'

A 97-page record has been filed here. There are four pages of testimony, and the rest of the transcript consists of pleadings, motions, affidavits, and discussions with the trial court over the year and four months (approximately) this case was being litigated. In the circumstances, we cannot confidently state the background facts, and we shall confine ourselves to a recitation of the record showing in connection with each point made on appeal.

The defendant's first assignment of error is that there was no evidence to support the decree of divorce to the plaintiff. In this connection, defendant cites a number of cases which hold that a plaintiff seeking a divorce on the ground of indignities must prove a course of conduct on the defendant's part which amounts to a species of mental cruelty through acts of such character and frequency as to be subversive of the family relation. In particular, defendant cites Rogers v. Rogers, Mo.App., 399 S.W.2d 606; L_ _ v. N_ _, Mo.App., 326 S.W.2d 751; and Price v. Price, Mo.App., 311 S.W.2d 341.

The record shows that on April 18, 1968, plaintiff filed a conventional petition for divorce in the Circuit Court of Lawrence County. In this petition, plaintiff alleged in substance that she and defendant were married January 30, 1949, and that they thereafter lived together until January 31, 1968, during which time they became the parents of three children. Plaintiff also alleged that she was a resident of Missouri, and, in paragraph two of her petition, alleged that she '* * * did faithfully demean herself as the wife of Defendant but Defendant tendered to (plaintiff) such indignities as to render her condition in life intolerable.' On the same day the petition was filed, an answer and entry of appearance was filed, signed by the defendant and an attorney on his behalf. The answer admits every allegation contained in the petition, and no affirmative relief is prayed. The same day, April 18, the trial court heard some evidence and discussed the case with plaintiff's attorney in open court, inquiring about a property settlement and the allowance of an attorney's fee to the plaintiff. Plaintiff's attorney stated that a property settlement had been worked out, but that plaintiff was not going to file it or request that it be approved. Defendant does not appear to have been present in person or by attorney. The court entered a decree granting plaintiff a divorce, awarding her custody of the children, with an allowance of $200 per month per child as child support, and allowing her an attorney's fee of $750.

In November 1968, defendant repudiated his answer and entry of appearance in a motion to set aside the judgment for irregularity, as contemplated by Rule 74.32. 1 The burden of this motion was that defendant had not authorized the entry of appearance or filing of an answer by his attorney. Responsive pleadings and motions followed, and when the motion came before the court on February 13, 1969, defendant asked and was granted leave to file another motion, this time a motion to set aside the judgment of April 18, 1968, on the ground that it was procured by fraud. The substance of this second motion was that plaintiff and her attorney had procured the defendant's answer and entry of appearance by fraud. More responsive motions and pleadings followed. Defendant's motions finally came before the court on May 29, 1969, one year and 41 days after the case was first heard, and the trial court sustained defendant's motion to set the judgment aside for irregularity. Defendant's motion to vacate the judgment for fraud in its procurement was withdrawn. Counsel for defendant announced:

'MR. LEVY: Let the record show that the defendant, Robert L. Hawkins, is now appearing in person and by counsel, Joseph S. Levy and Paul Margolis, on the issue of divorce, and that defendant is offering no additional pleadings, and the matter may be heard by the Court and determined by the Court on the facts, and defendant waives the requirement of character witnesses.'

The plaintiff was then sworn and interrogated. Her attorney asked her several very conclusionary and abstract questions concerning her marriage to the defendant and the commission of indignities by him. She was permitted to answer, without objection or motion to strike. Defendant's counsel confined himself, on cross-examination, to inquiry whether the eldest of the parties' children was being married 'within the next couple of days.' Plaintiff answered that she was, and stated that she, plaintiff, was only asking for support for the two children remaining at home.

In these record circumstances, the defendant's claim that the evidence does not support the decree is without merit. It is true that because of the interest of the state in continuance of the marriage relation there is practically no such thing as a divorce decree pro confesso, 3 Nelson, Divorce and Annulment, § 26.12, p. 67 (2d ed. 1945), and our statute, § 452.090, provides that '(i)n all cases where the proceedings shall be ex parte, the court shall * * * require proof of the good conduct of the petitioner, and be satisfied that he or she is an innocent * * * party,' but this case was not a default case, see Hamm v. Hamm, Mo.App., 437 S.W.2d 449, 452(1), and divorce is a matter of right and not of discretion when facts entitling the parties to it are made to appear on proper pleadings and service. Grenzebach v. Grenzebach, 118 Mo.App. 280, 283, 94 S.W. 567, 568. The trial court did hear some evidence in this case, and although plaintiff's counsel asked only a few questions of a highly conclusionary nature, still the weight and probative value of plaintiff's answers to those questions, received without objection or motion to strike, was for the trial court. Bourne v. Manley, Mo.App., 435 S.W.2d 420, 428, and cases cited marginally note 10. In the circumstances of this case, the evidence was sufficient to support the decree.

Defendant further argues that the trial court erred in awarding custody of the children to the plaintiff. As authority on this point, the defendant cites the case of H_ _ v. D_ _, Mo.App., 373 S.W.2d 646, which holds among other things that the trial court, in awarding custody of minor children, should inquire carefully into the home environment and the surroundings in which the child will be reared.

Plaintiff prayed for custody of the minor children in her original petition. When evidence was first heard on April 18, 1968, plaintiff testified that she and defendant were the parents of three children, a daughter aged 17, a daughter 16, and a son 10. At that time, plaintiff produced witnesses who testified to her good character. After the first judgment had been set aside, plaintiff again appeared as a witness, and defendant's counsel, in defendant's presence, was asked '* * * do you admit the good character and reputation of the plaintiff,' and he answered, 'I do, Your Honor.' Leave was asked to amend the petition to add an allegation that plaintiff was a fit and proper person to have custody of her children. Leave was granted without objection. Defendant made no contest concerning custody, and custody of the children was awarded to the plaintiff. On July 29, 1969, after the case had been heard a second time, defendant, in his motion for new trial, alleged that he had newly discovered evidence that plaintiff had cohabited with other men, 'notoriously and promiscuously in the presence of the minor children * * *.' It was further alleged that failure to obtain that information was not due to a want of diligence on defendant's part. Defendant asserts here that there was a 'pure abuse of discretion' on the part of the trial court in refusing to hear this newly discovered evidence when the motion for new trial was argued, but we are unable to find any record entry indicating that defendant attempted to offer the evidence or indicate what it was at that time.

This point is also without merit. Much of what we said in connection with the appellant's motion for new trial in Hamm v. Hamm, supra, 437 S.W.2d at 454(6--9), is applicable here. The defendant, so far as the record shows, was indifferent to the question of custody from the time he became aware it was in issue until his motion for new trial was filed. It is quite true that a trial court should be very careful to inquire into the environment into which a child will go when an award of custody is made, but in the absence of evidence that either parent is an unfit person to care for the child, a trial court is obliged to award custody to one parent or the other, § 452.120; Sanders v. Sanders, 223 Mo.App. 834, 839, 14 S.W.2d 458, 460(7), and throughout this litigation the plaintiff was the only...

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    • United States
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    • 28 Octubre 2014
    ...presented to the trial court. This is not a “particular, specific” claim of error arising for the first time on appeal. Hawkins v. Hawkins, 462 S.W.2d 818, 824 (Mo.App.Spfld.D.1970). Rather, it is a “broad contention” concerning custody in general. Del Monte Corp. v. Stark & Son Wholesale, ......
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    ...cases; the state is said to have an interest in protecting the marriage contract and the welfare of the parties. See, e. g., Hawkins v. Hawkins, 462 S.W.2d 818 821(1) (Mo.App.1971); Rogers v. Rogers, 399 S.W.2d 606, 611-612(6) (Mo.App.1966). The precedents so holding, however, are of minima......
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    • Court of Appeal of Missouri (US)
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    ...for us to pursue in this case what seems to be an interesting conflict between Fincher v. England, Mo.App., 463 S.W.2d 82, Hawkins v. Hawkins, Mo.App., 462 S.W.2d 818 and cases cited therein, on the one hand, in contrast to the decisions on the other hand in Russell v. Russell, Mo., 427 S.W......
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