Hill v. Hill

• Decision Date: 08 January 1951
• Docket Number: No. 21439,21439
• Citation: 241 Mo.App. 243,236 S.W.2d 394
• Parties: HILL v. HILL.
• Court: Missouri Court of Appeals

Page 394

236 S.W.2d 394

241 Mo.App. 243

HILL v. HILL.

No. 21439.

Kansas City Court of Appeals, Missouri.

Jan. 8, 1951.

Michael D. Konomos, William M. Day, Kansas City, for appellant.

I. Frank Rope, Arnold N. Shanberg and Herbert M. Rope, Kansas City, for respondent.

DEW, Presiding Judge.

The respondent, as plaintiff in the trial court, brought this action for divorce against John Judson Hill, alleged to be her husband, and pending the same, the plaintiff filed a motion for temporary alimony, suit money and attorneys' fees. The motion was sustained and the plaintiff was allowed $750 attorneys' fees and $100 a month temporary alimony. Defendant appealed from the order so made.

For the purpose of this appeal it is sufficient to say that the plaintiff's petition for divorce alleges the marriage on May 8, 1919, and certain indignities as ground for divorce, together with temporary and permanent alimony, and attorneys' fees. The petition further states that the plaintiff and defendant are the owners of certain substantial real estate and personal property entirely in defendant's possession and control.

The answer admits the marriage, denies the charges and avers that the defendant filed suit for divorce against the plaintiff on March 24, 1926, in Iowa, wherein service was had as required by the laws of Iowa then in force and effect, and that plaintiff herein made default in said divorce case and a decree of divorce was granted the defendant herein against the plaintiff on September 16, 1926. The answer alleges that such decree is entitled to full faith and credit in the instant case, and is a complete bar to this action, and that the decree so obtained in Iowa recites the service of legal notice and proof thereof. Attached to the answer as an exhibit is a copy of the Iowa decree referred to.

The reply herein admits the filing of the Iowa suit for divorce by the defendant, and that a decree was entered in same in favor of this defendant, but alleges that said decree is void and is not entitled to full faith and credit because the decree was obtained through fraud on the part of this defendant in fraudulently obtaining constructive service in said Iowa case by his false affidavit therein that this plaintiff was then a nonresident of Iowa and her residence was unknown, when in fact she was at the time a resident of Iowa, and her whereabouts at all time were known to the defendant (plaintiff in the Iowa case). The reply further states that the plaintiff herein had no notice of such Iowa decree until July, 1949; that even if such decree be valid, which she denies, then in the alternative, a common law relationship existed between the parties subsequent to the Iowa decree, and that the defendant is estopped from relying on the Iowa decree after his failure for 23 years to disclose its rendition to the plaintiff herein.

A pleading entitled a 'reply to the reply' was filed by the defendant, alleging that the plaintiff's reply is a collateral attack on the Iowa judgment; that such decree is an adjudication of the matters set out in the reply; that the plaintiff here had full knowledge of the Iowa decree as of the date thereof, or shortly thereafter; that defendant has not lived with the plaintiff since the Iowa decree; that plaintiff was fully aware of defendant's remarriage, and has conducted herself and held herself out to others as a single woman, and she is estopped to deny said Iowa decree. The Iowa statute was also pleaded, barring action to review a decree for fraud in the obtaining thereof after a period of two years.

There seems to be no dispute in the record that plaintiff and defendant are both of the Negro race; that they were duly married in Kansas City, Missouri in 1919, as alleged; that they thereafter lived as husband and wife in Mason City, Iowa, until 1926; that defendant herein filed action for divorce against plaintiff in March, 1926, in Iowa; that there was no service on the defendant (plaintiff here) in the Iowa suit other than by publication on a sworn application of the plaintiff therein, dated February 23, 1926, and filed March 2, 1926, alleging that 'Service of the original notice of the pendency of said cause cannot be made upon the defendant within the state of Iowa'; that a decree in the Iowa case was rendered by default in favor of the present defendant on September 16, 1926. The Iowa statute pleaded in plaintiff's reply, pertaining to service by publication, provided 'Service may be made by publication, when an affidavit is filed that personal service can not be made on the defendant within this state * * * when the action is for a divorce, if the defendant is a nonresident of the state, or his residence is unknown'. Code of Iowa 1924, Section 11081.

The Iowa decree of September 16, 1926, recited the default by the defendant therein (plaintiff here); the appearance of the plaintiff therein in person and by attorney; that the court examined the original notice and proof of service therein and found the same sufficient under the law; that the court thereupon heard the evidence under the petition and found the allegations thereof to be true; that defendant therein had been guilty of cruel and inhuman treatment such as to endanger the life of the plaintiff, and held and directed the said marriage be dissolved.

According to the testimony of the plaintiff she and her husband lived together from the date of their marriage, about two years in Kansas City, Missouri, later moving to Mason City, Iowa; that in May, 1926, she and defendant went to Alabama to attend the funeral of plaintiff's mother; that in August, 1926, at the suggestion of defendant, she took a vacation trip to California and remained there until shortly before Thanksgiving of that year, when she returned at the request of the defendant. She said that on March 2, 1926, the date the defendant's affidavit to obtain service by publication in his divorce action in Mason City, Iowa was filed, she was then living with him in that city and knew nothing of the divorce proceedings. On September 16, 1926, the date of the decree obtained by her husband in Iowa, she was still in California on her vacation trip. While there she received several letters and telephone calls from her husband, who at all times knew of her whereabouts. She testified that after her return from California, she thereafter lived with defendant in Mason City, Chicago, Kansas City and other cities.

She testified to various separations growing out of quarrels, involving abuse, cruelty and other mistreatment of her on the part of her husband and temporary separations following the same. On one occasion, while living together in Chicago, she had her husband arrested, and in that proceeding he admitted that he was her husband. In 1947, her husband requested her to join him in Kansas City and sent her railroad fare, whereupon she resided with him in Kansas City for some time as husband and wife. At no time had she yet been advised in anywise of the divorce decree in Iowa. On June 23, 1949, while living with defendant in Kansas City, another quarrel ensued and she left the home for her own protection. Returning with her brother to obtain her effects, she was told by the defendant for the first time that he had already divorced her. He had in the meantime married another woman with whom he had lived for several years and from whom he was divorced. In the course of plaintiff's testimony several letters were introduced, written by the defendant to plaintiff, expressing his affection for her and urging her to return, one letter being as late as May 15, 1947. She testified that the defendant had at one time shown her $8,000 in government bonds acquired during their marriage, and that she had counted his weekly rental collections in sums of $400 to $500 a week. She also testified that defendant had $10,000 in cash in banks, and several building and loan accounts. She said that none of this money was in her possession, and that she was without means. She also testified that she desired to take depositions in Chicago, Mason City and Los Angeles, and pay attorneys' fees. She was also in need of medical attention.

Plaintiff's brother testified that he heard the defendant tell the plaintiff on June 23, 1949, that he had already obtained a divorce from her and it wasn't necessary for her to get one. He also testified that the defendant told him that he had about $8,000 in bonds and owned various pieces of real estate in white neighborhoods.

Defendant testified that in Mason City in 1926, plaintiff complained of his coming home late when he was employed at night, and she left the home the latter part of February, 1926; that he learned she was in California and obtained her address and telephone number. He urged her to return and later told her over the telephone that he had started a divorce case against her. He said that plaintiff did not return until after the divorce was obtained and upon her return he told her of the decree. He denied that he and plaintiff thereafter lived together as husband and wife, although admitting that at various times plaintiff lived with his relatives in Kansas City and at one time they both lived in the home there although occupying separate quarters. He testified that he remarried and had lived with his second wife for several years and obtained a divorce from her in 1940. He admitted that he still had invested some $7,000 in property in Kansas City, but owed a mortgage of $3,700. He said he possessed some of the property mentioned by the plaintiff. He admitted that some two weeks before the trial he had told the plaintiff that he had $16,000 in bonds, and certain pieces of real estate in another name.

Other witnesses on defendant's behalf testified that the defendant had told plaintiff while they were living in Mason City in 1926, that she was no longer his wife, and that he had divorced her.

The defendant's alleged second wife...