Hawn v. Hawn, 34954

• Decision Date: 03 January 1974
• Docket Number: No. 34954,34954
• Parties: Shirley HAWN, Appellant, v. Melvin G. HAWN, Respondent. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 459

505 S.W.2d 459

Shirley HAWN, Appellant, v. Melvin G. HAWN, Respondent.

No. 34954.

Missouri Court of Appeals, St. Louis District, Division Two.

Jan. 3, 1974.

Motion for Rehearing or Transfer Denied Feb. 11, 1974.

Anderson, Gilbert, Wolfort, Allen & Bierman, Stuart M. Haw, Jr., St. Louis, for appellant.

Cupples, Cooper & Haller, Inc., Albert J. Haller, Gary H. Sokolik, Clayton, for respondent.

McMILLIAN, Judge.

This is an appeal by plaintiff, Shirley Hawn, from a judgment entered by the circuit court of the City of St. Louis in favor of defendant Melvin Hawn. The controversy arose out of a prior California temporary alimony decree in a separate maintenance suit which was vacated by a subsequent Missouri judgment.

Plaintiff and defendant were married in Oakland, California in November, 1966, and lived together until April, 1968, when plaintiff filed a suit for separate maintenance. The California decree awarded her temporary alimony of $325.00 per month until further order of the court. Neither party has sought to modify this decree.

Defendant, a resident of the City of St. Louis since 1968, filed for a divorce in the St. Louis Circuit Court in February, 1971. Plaintiff filed an answer and a cross-bill. This circuit court first awarded her alimony pendente lite, and thereafter on the merits granted her a divorce on her cross-bill, and alimony in gross in the amount of $5400.00.

In March 1972, plaintiff petitioned the circuit court for registration and enforcement of the California decree. She claimed that $11,375.00 of accrued instalments pursuant to the decree was due her. Defendant claimed that subsequent reconciliations had terminated his obligation to pay. The case was in the Equity Division of the Circuit Court, and the court vacated the California decree and discharged defendant.

Plaintiff claims the Missouri circuit court committed error in ruling (1) that there had been and effective condonation by Shirley Hawn of Melvin Hawn's marital misconduct, and (2) that such condonation automatically terminated the California temporary alimony decree and revoked accrued installments.

The circuit court based its findings and conclusions on the repeated, albeit irregular, interaction between the parties. The record reflects numerous occasions after the temporary alimony decree in which Shirley and Melvin Hawn spent weekends and sometimes longer periods together in various plces--Nevada, California and Missouri. The evidence showed that these visits were initiated by both parties at different times, one travelling to visit the other wherever that may have been; that during these visits the parties had intercourse, ate meals together, and went out socially together. The evidence, however, further showed that the parties never set up a common home for themselves; that almost inevitably arguments, particularly concerning the temporary alimony decree, would occur; that the defendant would become inebriated and violent altercations would ensue and that the defendant consorted with other women.

The issues in this case may be reduced to two simple questions. First, was there a reconciliation between plaintiff and defendant? And, second, if there was a reconciliation, did it abrogate the prior temporary alimony decree?

At the outset we observe that in a court-tried equity case, a reviewing court reviews it upon the law and evidence and should not set aside the judgment unless it is clearly erroneous having due regard to the opportunity of trial court to judge the credibility of witnesses. Sheffield v. Andrews, 440 S.W.2d 175 (Mo.App.1969).

The evidence shows that prior to the entry of the California separate maintenance decree and when defendant was working more than 100 miles from Oakland, California, where the parties lived, plaintiff would come to where defendant was working and stay with him at a motel during the week. If defendant did not have to work on a weekend, he would go home for the weekend with his wife.

After the separate maintenance decree, this pattern continued. On two or three occasions, while defendant was working in Nevada, plaintiff stayed with him for a week, and at various other times, she would stay just for weekends. In November 1968, defendant requested and plaintiff did leave California and come to Missouri. In January 1969, plaintiff came to St. Louis and stayed with defendant. In March 1969, defendant went to Oakland and stayed a week with plaintiff. From June 10, 1969, until the middle of July 1969, both parties lived together in defendant's apartment in St. Louis. After the middle of July 1969, they separated; however, in December 1969, plaintiff returned to St. Louis and they lived together until February 1970. During the times they lived together each performed his expected marital duties.

Plaintiff's evidence was to the effect that on each occasion when they were together defendant would get drunk and beat her until she was forced to leave.

As can be readily perceived the parties stayed together on an irregular and sporadic basis. In Peterson v. Peterson, 135 Cal.App.2d 812, 288 P.2d 171 (1955), in a similar case it was said:

'. . . 'The problem is one of whether the parties have become so reconciled as to have fully resumed relations as man and wife with intention that they be permanent, obviating the necessity or desire for termination of marriage and making its continuance a matter of social propriety and probable success.' . . .'

In the case of In re Boeson's Estate, 201 Cal. 26, 255 P. 800 (1927), the court held that the parties had not effected a reconciliation even though the husband visited the wife two or three times a week for two years and occasionally spent the night with her. Although it was admitted that the husband did not live with the wife because of the crowded condition of her house the court found that there had been no reconciliation because the parties never established a marital domicile, they did not constitute a joint economic unit and they evidenced an unstable attitude inconsistent with the resumption of marital relations.

Seemingly, in the case at bar, the sporadic and erratic cohabitation of the parties certainly did not amount to such a reconciliation as would allow the California court to terminate future alimony payments. See Walsh v. Walsh, 108 Cal.App.2d 575, 239 P.2d 472 (1952). On this issue defendant cites Chester v. Chester, 76 Cal.App.2d 265, 172 P.2d 924 (1946), as controlling. In...