Hogsett v. Hogsett

• Decision Date: 13 May 1935
• Docket Number: No. 18325.,18325.
• Parties: HOGSETT v. HOGSETT.
• Court: Missouri Court of Appeals

83 S.W.2d 152

HOGSETT v. HOGSETT.

No. 18325.

Kansas City Court of Appeals. Missouri.

May 13, 1935.

Appeal from Circuit Court, Vernon County; Chas. A. Hendricks, Judge.

"Not to be published in State Reports."

Suit for divorce by Frances Hogsett against Henry Hogsett. From a judgment for plaintiff, defendant appeals.

Affirmed.

J. B. Journey, of Nevada, Mo., for appellant.

Hallett & Hallett, of Nevada, Mo., for respondent.

REYNOLDS, Commissioner.

This is a suit for divorce. The parties were married in Vernon county, Mo., November 5, 1932, and lived together as husband and wife until or about October 26, 1933. The suit was filed by the wife as plaintiff in the circuit court of Vernon county on July 9, 1934; and the cause was tried at the October term of the court, 1934, resulting in a decree for plaintiff for divorce, for the custody of an infant child, Doyle Lynn Hogsett (the custody of which child was asked by her in the petition), for alimony in the sum of $5 per month, and maintenance of said child in the sum of $5 per month until the further order of the court, and for $25 on account of attorneys' fees.

The grounds on which plaintiff seeks divorce are that the defendant, as her husband, offered to her such indignities that her condition in life was thereby rendered, and was, at the time of the filing of the petition, intolerable.

The matters constituting such alleged indignities are fully set out in the petition.

The defendant answered by admitting the marriage, the date thereof, and the birth of the child, and by denying each and every other allegation of the petition.

After unsuccessful motions for new trial and in arrest of judgment, the defendant prosecutes this appeal.

The plaintiff supported the allegations of her petition by her sworn testimony on the trial and the testimony of other witnesses. It was also shown by testimony of such other witnesses that she was a person of good reputation and conduct.

The defendant, it appears, is a practicing attorney; and he himself conducted his defense. While he filed an answer, he did not testify in the case or by his testimony deny the charges against him or undertake to give the circumstances under which the matters charged occurred, so as to present them in any different light from that in which they were presented by plaintiff or to explain them otherwise. It is true that it appears, from the testimony of other witnesses called by him, that he was a man of good conduct and reputation in his community. None of such witnesses appeared to know much, if anything, of the relations between himself and plaintiff as husband and wife and of the matters complained of against the defendant by the plaintiff in her petition.

1. The defendant contends that the matters of complaint registered by plaintiff in her petition and declared upon as indignities are not such indignities as, within the contemplation of the statutes, are sufficient to have rendered her condition intolerable. Whether they are or not must depend upon the facts of this particular case. There are no rules which may be applied whereby it is declared that any certain and specifically designated acts by husband or wife during the marriage relation constitute indignities for which the one or the other must or must not be granted a divorce in any and all cases.

In Hooper v. Hooper, 19 Mo. 355, loc. cit. 357, the Supreme Court of this state at an early date said: "It is impossible to lay down any rules that will apply to all cases, in determining what indignities are grounds of divorce, because they render the condition of the injured party intolerable. The habits and feelings of different persons differ so much, that treatment which would produce the deepest distress with one would make but a slight impression upon the feelings of another. It is impossible, therefore, under the statute, to specify particular acts as the indignities for which divorces may, in all cases, be granted; for it is not possible to state the effect of such acts, in rendering the condition of all persons injured intolerable. The legislature chose to leave the subject at large, and by the general words employed, evidently designed to leave each case to be determined according to its own peculiar circumstances."

We cannot therefore arbitrarily reject the allegations in plaintiff's petition setting out the acts of the defendant, complained of, and charging them to be indignities such as rendered her condition intolerable as being insufficient to constitute indignities in that regard; but whether they were or not is to be gathered from the facts in the case and made to depend upon whether or not they, in fact, did tend to and did make and render her condition intolerable.

Indignities contemplated by the divorce law as being sufficient to authorize a decree of separation consist of any unmerited contemptuous conduct by one spouse toward the other and of acts by the one toward the other which manifest contempt for such other or which manifest contumely or incivility or any act of injury accompanied with insult and amounting to a species of cruelty to the mind. Lynch v. Lynch, 87 Mo. App. 32. They must consist of a species of mental cruelty such as to render plaintiff's condition intolerable. It has been said that, in order for an indignity to be intolerable in a statutory sense, it must amount to a species of mental cruelty. Goodman v. Goodman, 80 Mo. App. 274; Holschbach v. Holschbach, 134 Mo. App. 247, loc. cit. 257, 114 S. W. 1035; Scholl v. Scholl, 194 Mo. App. 559, loc. cit. 566, 185 S. W. 762; O'Hern v. O'Hern, 206 Mo. App. 651, loc. cit. 658, 659, 228 S. W. 533.

2. The acts constituting the indignities complained of charged in plaintiff's petition are: (1) That the defendant is wholly void of affection for the plaintiff and for their infant child, and has so demonstrated by his neglect to see and care for both the plaintiff and said child; (2) that, when the plaintiff was in a delicate condition, about to give birth to the child, the defendant sent the plaintiff alone to the home of her parents, from whom she received care and attention, and that he, since December 1, 1933, had visited plaintiff and said child upon only one...