Kleinhammer v. Kleinhammer, 21242

• Decision Date: 05 December 1949
• Docket Number: No. 21242,21242
• Citation: 225 S.W.2d 377
• Parties: KLEINHAMMER v. KLEINHAMMER.
• Court: Missouri Court of Appeals

Page 377

225 S.W.2d 377

KLEINHAMMER v. KLEINHAMMER.

No. 21242.

Kansas City Court of Appeals, Missouri.

Dec. 5, 1949.

William A. Seibel, Jefferson City, for appellant.

Lauf & Bond, H. P. Lauf, John O. Bond, John W. Goodin, Jefferson City, for respondent.

BROADDUS, Judge.

This is an action for divorce. Plaintiff's petition was based upon general indignities. Defendant filed his cross-petition, which, likewise alleged general indignities. At the conclusion of the evidence the court took the case under advisement and later entered a decree dismissing plaintiff's petition and granting defendant a divorce on his cross-petition. Plaintiff has appealed.

Plaintiff and defendant were widow and widower prior to their marriage in October, 1927, she having two minor sons at that time and he a minor daughter and son. The actual separation between plaintiff and defendant took place in August, 1947, although they had not occupied the same bed since 1938.

In view of the action that we are compelled to take it will be unnecessary to recite the facts disclosed in the record before us. Respondent filed his motion to dismiss plaintiff's appeal for the reason that she has violated Rule 1.8 of the Supreme Court concerning appeals in the following particulars:

'1. Appellant has failed to make a fair and concise statement of the facts in her brief in that she has omitted from said statement of facts all of the evidence introduced by Respondent upon which evidence the court granted the Respondent a decree of divorce, and no where in appellant's statement of facts in her brief can be found any of the evidence introduced by Respondent.

'2. Appellant has violated the above rule of court concerning briefs by failing to make a fair and concise statement of facts, but instead practically all of Appellant's purported statement of facts instead of being a statement of facts are Appellant's conclusions of fact and law, and fails to state facts but merely Appellant's conclusions as aforesaid.

'3. Appellant has violated the above rule of the Supreme Court concerning the preparation of briefs in that Appellant has stated facts that are wholly untrue, has misrepresented the facts, and has grossly distorted the actual facts, so that Appellant has failed to make a fair and concise statement of facts as required by said rule.'

This motion was taken and submitted with the case. Respondent has filed no statement, or brief upon the merits, electing to stand upon his motion to dismiss.

After a careful examination of all the evidence in this transcript, a mere reading of the statement of facts in appellant's brief discloses that appellant has ignored the evidence presented on behalf of respondent. His evidence, in effect, discloses that, although, for years he had been a very sick man, suffering from broncho-asthma, resulting in irreparable damage to his heart and compelled to take adrenelin and, in addition, was allergic to certain foods, he continued in his regular employment and properly supported plaintiff; that notwithstanding defendant's physical condition plaintiff constantly nagged at him, many times threatened to leave him, failed to prepare his meals, expressed dissatisfaction over financial matters, sought her own employment over his objection, and finally deserted him, taking with her practically all of the household goods accumulated during the marriage. No intimation of this situation can be found in appellant's statement.

...