Hupp v. Hupp

• Decision Date: 03 May 1946
• Parties: Melvin Hupp, Respondent, v. Buelah Hupp, Appellant, Larkin W. Warren and Roxie Warren, Intervenors
• Court: Missouri Court of Appeals

194 S.W.2d 215

238 Mo.App. 964

Melvin Hupp, Respondent, v. Buelah Hupp, Appellant, Larkin W. Warren and Roxie Warren, Intervenors

Court of Appeals of Missouri, Springfield District

May 3, 1946

Appeal from the Circuit Court of Butler County; Hon. Randolph H Weber, Judge.

Affirmed.

Eugene M. Munger for appellant.

J Grant Frye and Gerald B. Rowan for intervenors.

In order to be entitled to a decree of divorce it is incumbent on plaintiff herein to prove that he was the innocent and injured party and that he himself was innocent of any misconduct toward the defendant. Miles v. Miles, 137 Mo.App. 38, 119 S.W. 456; Miles v. Miles, 54 S.W.2d 741. Even though the plaintiff may have shown that defendant was guilty of marital misconduct, the evidence also showed that plaintiff has been guilty of marital misconduct and neither spouse is entitled to a decree of divorce. Hogsett v. Hogsett, 186 S.W. 1171; Ellebracht v Ellebrecht, 243 S.W. 209; Wallner v. Wallner, 167 Mo.App. 677, 150 S.W. 1082; Wells v. Wells, 108 Mo.App. 88, 82 S.W. 1103; Harris v. Harris, 223 S.W. 771. Plaintiff did not come into court with clean hands and free from any wrongful conduct against defendant and should be denied a divorce. Schumacher v. Schumacher, 14 S.W.2d 519; Libbe v. Libbe, 157 Mo.App. 701, 138 S.W. 685. The only ground of divorce was desertion and the only testimony on the issue came from the plaintiff and a decree of divorce is rarely granted on the uncorroborated testimony of a party, especially where, as here, the conduct of that party toward the other spouse has not been proper. Teel v. Teel, 289 S.W. 973; Magruder v. Magruder, 31 S.W.2d 213; Bassett v. Bassett, 28 S.W. 430; Gruner v. Gruner, 183 Mo.App. 157, 165 S.W. 865.

Harry S. Bock for respondent.

The husband has the right to select the family domicile, the wife's duty being to accompany him there and if she refuses to do so it constitutes desertion on her part. Parsons v. Albertson (Mo. App.), 31 S.W.2d 211; Shuman v. Shuman (Mo. App.), 93 Mo.App. 99; Messenger v. Messenger (Mo. App.), 56 Mo.App. 329. The defendant stood on a motion to dismiss and offered no evidence, therefore the court must consider the evidence most favorable to plaintiff. Gates v. Dr. Nichols' Sanitorium, 55 S.W.2d 42; Potashnick v. Pearline, 43 S.W.2d 790. Where either of the divorced parents is able morally and financially to care for the child, he is entitled to custody thereof over the maternal grandparents. Thompson et al. v. Arnold et al., 230 S.W. 322.

Vandeventer, J. Fulbright, P. J., and Blair, J., concur.

OPINION

VANDEVENTER

On March 29, 1945, Melvin Hupp filed a petition for divorce in the circuit court of Butler County, Missouri. On April 7, his wife, Beulah Hupp, filed her answer and cross-bill. We will refer to them as plaintiff and defendant. On June 15, the defendant withdrew her cross-bill but not her answer, which was in the nature of a general denial, whereupon the case went to trial. Plaintiff testified that he married defendant (whose maiden name was Buelah Beatrice Warren), October 8, 1938 at Benton, Missouri, and lived with her approximately four months. They were living in a one-room house which had been a garage remodeled for living purposes. When they married, he was a farmer, a fact well known to the defendant. After the marriage, they lived in Chaffee, he doing odd jobs of work and receiving therefor approximately $ 1 per day. By January 24, 1939, he had made arrangements to move to his father's farm where he would receive employment and also be furnished a house in which to live. His work would have been driving a tractor and team, clearing ground and general farm duties. He told his wife about this arrangement and she refused to go to the farm. He told her he could not make a living in town, there wasn't enough work and that he must go to a farm where he could obtain employment. She refused to go with him and asked that she be taken to her mother's home. Plaintiff refused to live with her mother and father, so he left defendant at her mother's home and obtained employment, not on his father's farm but on a farm in Stoddard County. He lived there about a year and a half before going back to his father's farm in September, 1940. On January 8, 1942, he was inducted into the Army, first being stationed in Texas, then transferred to the States of Washington, Nevada, California, New Mexico, Virginia, Connecticut and on July 17, 1942, was sent to England. From there he went to Africa, then to Italy and July 8, 1944, returned to the United States. At the time of the trial he was still in the Armed forces and located in Tennessee. Before he was inducted into the Army, he had tried several times to get his wife to come and live with him, but she positively refused to do so. In December, 1944, while stationed in Nashville, Tennessee, he received a letter from his wife asking him to give her a divorce. He testified that he had given his wife no reason for refusing to live with him and that he had always conducted himself properly; that he had had a home ready for her until he was inducted in the Army but she refused to come to it.

To this marriage was born one child, August 18, 1939 -- a boy named Melvin Clifford Hupp, and plaintiff asked for his care and custody. He stated that while he was in the Army, if he were given custody of it, he would provide a good home for it with his parents. He further testified that he had never cohabited with his wife after the night he took her to her mother's in January, 1939, and that he had seen her only one time, when she passed his father's house in a truck with their child. There was introduced in evidence certified copies of two birth certificates issued by the State Board of Health, the first showing that on June 12, 1942, there was born to Mrs. Melvin Hupp, whose maiden name was Buelah B. Warren and whose age was 22 years, a child named Beatrice Imogene Hupp. Mrs. Hupp's address was given as Chaffee, Missouri. Melvin Hupp was named as its father; the certificate stated that the mother had one child living at the time and that the attending physician was Dr. A. L. Fuerth. The child was born at St. Francis Hospital in Cape Girardeau. The other birth certificate stated that in the St. Francis Hospital at Cape Girardeau, Mrs. Buelah B. (Warren) Hupp of Chaffee, Missouri, had given birth to another child on April 30, 1944, and stated that the mother was 24 years old, was born at Bell City, Missouri, usual occupation was housewife and the mailing address for registration notice was Mrs. Buelah Beatrice Hupp, Chaffee, Missouri. The attending physician was also Dr. A. L. Fuerth.

The evidence further showed that Clyde Stubbs, a funeral director who lived in Chaffee, Missouri, had known defendant for about five years; that he conducted the funerals of two children by the name of Hupp in the years 1942 and 1944. The parents of the defendant (petitioners for modification) made arrangements for the funerals. Defendant Buelah Hupp later came to the mortuary and paid the balance due for funeral services. The first funeral was conducted June 30, 1942, the second funeral was held April 30, 1944. The court permitted the introduction of the birth certificates, and the evidence of the funerals, as bearing only upon the question of the care and custody of the child. Plaintiff, after the separation, had contributed $ 5.00 at one time and had at another time sent a suit of clothes to his son, but had made no other contributions.

Evidence was also offered showing the plaintiff to be a man of good moral reputation. Mrs. Elizabeth Hupp, mother of plaintiff, testified that plaintiff, when not in the Army, made his home with her and her husband. That she and her husband were able and willing to take care of the child while plaintiff was in the service. She was 54 years old and lived within a mile and a quarter of a school house. That defendant told her one time, just prior to the separation that she would not live on a farm. Witness further testified that she and her husband owned a farm of 164 acres, for which they had contracted to give $ 5,500 and of which amount they had paid $ 3000. That they had two sons, eleven and thirteen years of age, who resided with them. Upon the close of plaintiff's testimony, attorney for defendant made an oral motion that the court dismiss plaintiff's cause of action for failure of proof. This was overruled conditionally. Defendant offered no evidence but the record shows that defendant and her mother and father, Mr. and Mrs. L. W. Warren, were present in the courtroom during the trial. The motion was then overruled unconditionally.

The decree for plaintiff, granting him a divorce and care and custody of the child, was rendered June 15. On June 25, defendant filed a motion for new trial which was set for hearing on July 2nd. Neither party appearing on that date, the motion was overruled. This ruling was set aside on July 14th. On July 31, the motion for new trial was again overruled. On July 17, Larkin W. Warren and Roxie Warren, parents of defendant, filed the following petition for modification of the decree relative to the custody of the child:

"Larkin W. Warren and Roxie Warren petition the court to modify the decree herein and give them custody of the infant child of the parties in this case for the following reasons.

"1. The petitioners herein have had the custody of said child since its birth and have nourished it and cherished and have exclusively maintained it.

"2. That the plaintiff is an unfit person to have the custody of the child and due to his military service is unable to take care of it.

"3. That it will be to the best interest of the child for the petitioners to have the custody of said child.

"4. That the...