Hays v. Hays

• Decision Date: 19 February 1930
• Docket Number: 28131
• Citation: 24 S.W.2d 997,324 Mo. 810
• Parties: Dorothy Hays, Appellant, v. Grover L. Hays
• Court: Missouri Supreme Court

24 S.W.2d 997

324 Mo. 810

Dorothy Hays, Appellant, v. Grover L. Hays

No. 28131

Supreme Court of Missouri

February 19, 1930

Transferred from Kansas City Court of Appeals.

Reversed and remanded.

B W. Boley for appellant.

(1) The court assigned as a sole reason for dismissing plaintiff's petition that it had no jurisdiction of the cause "for the reason that all of the charges alleged in plaintiff's petition occurred outside of the State of Missouri before plaintiff had acquired a residence in this State and that the charges were not even a ground for divorce in the state where plaintiff and defendant formerly lived and where defendant still lives." In this the court erred. Our statute requires only the allegation and proof of a year's residence, or that the offense or injury complained of was committed in this State while plaintiff resided in this State. Either is sufficient to give the court jurisdiction. Stone v. Stone, 134 Mo.App. 242; Rose v. Rose, 156 N.W. 665, 132 Minn. 342; Colburn v. Colburn, 38 N.W. 608, 70 Mich. 647; Walker v. Walker, 89 A. 374, 111 Me. 405; Carty v. Carty, 73 S.E. 310, 70 W.Va. 146; Tolen v Tolen, 2 Blackf. 407; Cheatham v. Cheatham, 10 Mo. 299; Johnson v. Johnson, 95 Mo.App. 329; Clark v. Clark, 191 Mo.App. 278; Gordon v. Gordon, 128 Mo.App. 710; McConnell v. McConnell, 167 Mo.App. 680; Coulter v. Coulter, 124 Mo.App. 149. (2) This court has the power and it is its duty to examine the record and give such judgment as the trial court ought to have given. Sec. 1514, R. S. 1919; Warfield v. Hume, 91 Mo.App. 541; Dickson v. Rouse, 80 Mo. 224.

J. G. Hutchison for respondent.

(1) No other judgment than a dismissal of appellant's petition was proper, because her own undisputed testimony showed that she had not been a resident of Missouri for one whole year before she filed her original petition herein. State ex rel. Taubman v. Davis, 199 Mo.App. 439; Ringold v. Barley, 5 Md. 186; Mitchell v. United States, 21 Wall. 350; Allgood v. Williams, 92 Ala. 551; White v. Tennant, 31 W.Va. 730; Summerall's Committee v. Commonwealth, 162 Ky. 654; Hays v. Hays, 282 S.W. 57; Field v. Field, 236 Mass. 128. (2) The courts of Missouri have no jurisdiction of an action for divorce wherein the grounds stated therefor occurred in another state, where the parties were both domiciled at the time such grounds are alleged to have occurred, and where such alleged grounds do not entitle the party aggrieved to a divorce in the state where they are alleged to have occurred, and one only of the parties comes to Missouri, and the other remains in the state where such grounds are alleged to have occurred. 19 C. J. 33; In re Taubman v. Davis, 199 Mo.App. 439; Wagoner v. Wagoner, 287 Mo. 567; Norris v. Norris, 64 N.H. 523; Statbury v. Statbury, 27 N.J.Eq. 673; Mix v. Mix, 1 John Ch. (N. Y.) 204; Stokes v. Stokes, 1 Mo. 320; 19 C. J. 28, sec. 40; Sec. 1805, R. S. 1919; Lexington v. Bank, 130 Mo.App. 687; Chapman v. Chapman, 269 Mo. 663; Boyle v. Boyle, 26 Mo. 545; McIntire v. McIntire, 80 Mo. 470; Sharp v. Sharp, 134 Mo.App. 278; Harlean v. Harlean, 14 Pick. 181; Doran v. Doran (Del.), 117 A. 24; Vachikeisas v. Vachikeisas, 112 S. E. (W. Va.) 316; Ashbaugh v. Ashbaugh, 17 Ill. 476.

Blair, P. J. White, J., concurs; Walker, J., absent.

OPINION

BLAIR

Action for divorce. The Jackson County Circuit Court held that it had no jurisdiction to try the case for the reason that all of the acts charged as grounds for divorce occurred in the State of Kansas, before plaintiff (appellant) acquired a residence in Missouri, and because the acts charged did not constitute grounds for divorce in the State of Kansas. The trial court dismissed the case. After motion for new trial was denied, an appeal was granted to the Kansas City Court of Appeals. That court affirmed the judgment, but, deeming its opinion to be in conflict with a certain decision of the St. Louis Court of Appeals, transferred the case to this court. It is, therefore, before us for all appellate purposes.

The case was before the Kansas City Court of Appeals upon a former occasion when defendant (respondent) was granted an appeal from the order of the trial court allowing plaintiff alimony pendente lite. The judgment was then reversed and the case remanded. [Hays v. Hays, 282 S.W. 57.] The merits of the case were not before the Kansas City Court of Appeals at that time. It was held that no fraud was practiced upon defendant in obtaining service of summons upon him in Missouri, and that, even if defendant had been improperly lured into this State and served with summons, he had waived any question of that sort by participating in the hearing on plaintiff's motion for alimony pendente lite. The judgment awarding plaintiff alimony pendente lite was reversed because it did not sufficiently appear from the evidence that plaintiff had been a resident of Missouri for one whole year next before the commencement of the action. An amendment to the petition was also suggested became the allegations as to indignities were indefinite.

Upon the former appeal, the Kansas City Court of Appeals did not consider the right of plaintiff to maintain her divorce action where the acts constituting her alleged grounds for divorce occurred in another state. Whether the jurisdiction of the trial court was challenged in the pleading filed by defendant prior to the first appeal does not appear. So far as the record before us is concerned, that defense was made in the answer to the amended petition, which was filed after the first appeal was decided.

The only evidence before the trial court at the last hearing was the testimony of plaintiff, certain letters which passed between the parties after their separation and the statute of Kansas setting forth the grounds for divorce in that state. Plaintiff offered no testimony concerning her own good conduct or good character and defendant offered no evidence whatever, except the Kansas statute referred to.

One of the errors complained of by plaintiff is the dismissal of her case on the ground that the acts of defendant relied upon for divorce occurred in Kansas, while both the parties were residents of that state.

This was one of the reasons offered by the trial court for dismissing the case and the only reason assigned by the Kansas City Court of Appeals for sustaining the action of the trial court. We quote from the opinion of the Court of Appeals, as follows:

"The petition asks for a divorce on the ground of indignities. The facts show that all the matters complained of in the petition occurred outside of the State of Missouri and while neither of the parties was a resident of this State. There are two lines of authorities in this country diametrically opposed to each other, one holding that a court has no jurisdiction over a divorce suit or the marital status where the cause of the divorce arose when the parties were domiciled in another state or while the plaintiff was not a resident of the state in which the suit is brought; the other holding that the court has jurisdiction to grant a divorce where the domicile of the party seeking it is that of the state in which the suit is brought, regardless of where the cause of the divorce arose or the residence of the plaintiff at the time of the misconduct of the defendant. In an early case the Supreme Court adopted the former holding, see Stokes v. Stokes, 1 Mo. 320, 323, when the court reversed and remanded the cause, stating that at another trial it would be necessary for plaintiff to show that the adultery, the offense complained of by plaintiff in that case, had been committed within the State or while the injured party was domiciled within this State. This case has never been overruled or criticised. We are, therefore, of the opinion that the action of the trial court was proper."

We do not regard the Stokes case as authority for the ruling of the Kansas City Court of Appeals that the courts of this State are without jurisdiction to grant a divorce where the offense or injury relied on as the ground for divorce was committed outside this State and while both of the parties resided outside this State. True, this court in the Stokes case did suggest for the benefit of a new trial that "adultery is a good cause for divorce from bed and board (which was all the relief there asked by plaintiff), if committed within the State, or while the injured party is domiciled within this State." (Parenthetical words ours.) This must be understood in connection with the ruling of this court that neither the allegation nor the proof in respect to the act of adultery in Missouri was sufficient. The court was not then considering the act of adultery committed outside of Missouri. It did hold that plaintiff was not entitled to a divorce upon the acts of adultery committed in England, where plaintiff and the defendant both lived at the time and for nine years thereafter. But the divorce was not denied because such act was not committed in this State. Such denial was because the particular ground for divorce had been waived by plaintiff's delay in asking a divorce on that ground. Judge Pettibone said: "I consider the adultery in England as waived by the conduct of the complainant: see 1 Johns. Chan. Rep. 490. And, I am unwilling to establish the principle, that parties may lie by in their own country, under injuries of this kind, for years, and then come here and ask us for redress, which they might, and ought to have obtained there."

The language used by the court in making disposition of the case shows that it was the waiver of the ground for divorce and not the place of the commission of the act constituting such ground which caused this court to deny the divorce. It was then said: "Being of opinion, therefore, that...