Hess v. Hess

• Decision Date: 06 November 1944
• Docket Number: No. 20516.,20516.
• Citation: 183 S.W.2d 560
• Parties: HESS v. HESS.
• Court: Missouri Court of Appeals

183 S.W.2d 560

HESS v. HESS.

No. 20516.

Kansas City Court of Appeals. Missouri.

November 6, 1944.

Appeal from First Circuit Court, Adair County; Noah W. Simpson, Judge.

Action for divorce by Faye Hess against George P. Hess. From a judgment dismissing the petition, plaintiff appeals.

Reversed and remanded with directions.

E. M. Jayne and J. E. Rieger, both of Kirksville, for appellant.

Alpha Burns, of Marceline, for respondent.

BOYER, Commissioner.

Action for divorce. This is an appeal from an order and judgment of the Circuit Court of Adair County rendered February 7, 1944, dismissing plaintiff's petition. The parties will be referred to as designated in the trial court. There had been prior litigation between the parties.

Plaintiff first filed her action for divorce in the year 1935, in the Circuit Court of Sullivan County. Upon trial the judgment of the court in that case was rendered May 10, 1935, in which plaintiff's petition was dismissed. Thereafter plaintiff instituted another suit for divorce in the Circuit Court of Adair County, which case was tried upon an amended petition and answer at the February Term, 1937, resulting in a decree of divorce for plaintiff and the custody of an infant child. The defendant appealed that case to this court and the result of said appeal is shown in Hess v. Hess, 232 Mo.App. 825, 113 S.W.2d 139. The judgment in plaintiff's favor was reversed on the issue of res judicata, and on account of the erroneous introduction of evidence of indignities which were not properly alleged in the petition. The cause was remanded. In disposing of the appeal this court found on the evidence of record that the petition in the Sullivan County case was practically identical with the petition in the case then on review, and that "no new or additional charges are made as grounds for divorce in the petition in this case to those made in the petition in the former case. * * * Nothing is set forth therein as a new or as an additional ground for divorce which is alleged therein to have arisen since the decree in the former suit." It was also ruled that the trial court erred in permitting testimony concerning the alleged conduct of the defendant subsequent to the separation and subsequent to the decree in the former case because there was no allegation in the petition that such incidents had occurred since the decree in the former suit. The foregoing facts are recited as preliminary to the statement of the pleadings and the evidence in this case.

After the cause was remanded and on October 25, 1943, plaintiff filed her fourth amended petition in the Adair Circuit Court upon which, together with defendant's answer, the case was tried. In said amended petition it is stated that plaintiff and defendant were married October 26, 1927, and lived together as husband and wife until December 22, 1934, and after other formal and conventional allegations on behalf of plaintiff she charged that "the defendant, unmindful of his duties as the husband of plaintiff, since January 1, 1938, has offered to her such indignities as to and did render her condition intolerable; that he failed and refused to support plaintiff and their infant child since the filing of the second amended petition"; that defendant sought to separate plaintiff and her said child in 1938, when said child was in her custody and being supported by her, which indignity was inflicted since the filing of the petition in this case; that since the filing of the said petition, defendant abused plaintiff by quarreling and threatening her and she was required to call the police of Kirksville, Missouri, to compel him to leave her premises and that since the filing of the petition in this cause, he has threatened plaintiff forcibly to take said child without right, all without cause or excuse. That at other times since 1938, he became angry at plaintiff and cursed and abused her and stated that if he ever got a chance to get hold of said child she would never see him again, and that he at times secretly came to Kirksville, where plaintiff was living, in order to get possession of said child and had others to do so; that he promised the said child to provide him with clothes and music for his school work in order to deceive plaintiff to permit defendant to get possession of said child and then failed so to do, in order to worry said child and his mother the purpose being to keep the plaintiff terrorized for fear he would get possession of said child and take him from the custody of plaintiff. Plaintiff further alleged that she has supported the child by her own efforts; that the defendant has property and is able to earn good wages to assist in the support of plaintiff and the child. Plaintiff prayed to be divorced from defendant, to have the custody of the child, and that the defendant be required to support the child.

To this petition the defendant filed answer in which he denied every allegation contained in it, but further stated that he was lawfully married to plaintiff as alleged, and "that all matters herein set out in the petition of plaintiff have heretofore been fully adjudicated by the judgment and decree of the Circuit Court of Sullivan County, Missouri," and by the decision of the Court of Appeals of Kansas City, Missouri. Defendant denied that he had at any time threatened the plaintiff as alleged or otherwise; that he had not quarreled with her, and that police were not called on account of any act of plaintiff; that all matters pleaded in the amended petition of plaintiff are res judicata, all having been determined by the decree in the Sullivan County case upon a petition alleging all matters in said amended petition which could or did state any cause for divorce. Defendant prayed that plaintiff's fourth amended petition be dismissed, and for an order to have at least part time custody of the child named in the petition, and for all proper relief.

From the bill of exceptions as shown in the abstract of the record it appears that upon the pleadings being presented to and read by the court, counsel for defendant orally moved for judgment upon the pleadings for the reason that there was nothing stated in the fourth amended petition setting up new matter which would constitute a cause of action which had occurred since the rendition of the opinion in the Kansas City Court of Appeals, and that the amended petition failed to state any cause of action for divorce.

The learned trial court stated his tentative view to be that all matters prior to the rendition of the opinion in the Court of Appeals were res judicata. However, the court concluded to and did hear the evidence.

From plaintiff's testimony it appears that she is a graduate nurse and head nurse at a hospital in Kirksville; that she is thirty-two years of age and defendant about sixty; that their child, named Clay R. Hess, has been in her custody continuously since their separation; that defendant had contributed nothing to her support or that of the child; that she was able to and had furnished the child all food, clothing and care in health and in sickness and kept and maintained him in school, and that her income is sufficient to enable her to do so; that since the last trial her husband had come to see her on different occasions in Kirksville in an effort to get possession of the child which she refused to relinquish. She said: "He told me if I did not let the child go down there with him, if he ever got hold of the child, that I would never see him again"; that he kept trying to entice the boy by promises of money and other things, none of which he ever furnished; that she learned of the defendant attempting to go to the school where the boy was in order to get him after his threat that she should never see him again; that she then requested the teacher not to allow the boy to leave with any stranger; that she became very nervous and upset and the child also became sick and very nervous; that he was placed in a hospital for some time, all at plaintiff's expense; that all these things happened since the other trial; that at one time while plaintiff was living in the home of one Starbuck, the defendant came there to see her, became very quarrelsome and abusive and cursed her, and renewed his threat that she should never see the boy again if he could get him; that he was ordered away, but would not go and she called the police who came, and defendant left. Plaintiff further testified to several occasions on which defendant administered to her the same kind of abuse.

Plaintiff was corroborated by her mother, who testified that the defendant had made the same statement to her about taking the boy and never permitting the plaintiff to see him. Plaintiff was supported by the testimony of her sister in reference to the conduct of defendant and his abuse of plaintiff at the Starbuck home at the time the police were called. She testified that the defendant appeared in high temper; that he was mean and mad all the time he was there; that he was angry; that he called plaintiff names; talked mean and used profane language, and that she was present when the police came. On cross examination she said that she was visiting her sister at the time and that she heard everything the defendant said; that he used profane language, but she could not recall the exact words.

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