Klepper v. Klepper
| Decision Date | 23 November 1915 |
| Parties | OLA KLEPPER, Respondent, v. HARRY I. KLEPPER, Appellant |
| Court | Missouri Court of Appeals |
Submitted on Briefs November 4, 1915.
Appeal from St. Louis City Circuit Court.--Hon. Kent K. Koerner Judge.
AFFIRMED.
Judgment affirmed.
Bass & Bass for appellant.
(1) This action is predicated upon section 8295, R. S. 1909. An allowance for suit money pendente lite in an action by the wife for maintenance is not allowable. Dorrance v Dorrance, 257 Mo. 317. (a) The evidence in support of the motion for alimony pending the case in the circuit court and for suit money did not make out a prima-facie case, show necessity or good faith. Courts have relaxed the strict rule pertaining to alimony pendente lite as applied under the statute in divorce cases and under the maintenance statute. An allowance of alimony pendente lite and suit money is not an absolute or vested right, or a matter of course. Stark v. Stark, 115 Mo.App. 436; Hedrick v. Hedrick, 157 Mo.App. 633. Evidence in support of the motion for alimony pendente lite and suit money showing the payment of one hundred dolars a month to the respondent continuously without intermission from the date of the separation of appellant and respondent, the pendency of a divorce case and the absence of evidence to show that respondent did not consent to the separation, failed to make out a prima-facie case of abandonment and desertion, coupled with a refusal or neglect to contribute to respondent's support, as required under the decisions. Doyle v. Doyle, 26 Mo 545; Davis v. Davis, 60 Mo.App. 545; Bissell v. Bissell, 3 How. Prac. 242; 2 Enc. of Law (2 Ed.), page 101; Solomon v. Solomon, 28 How. Prac. 218; Desbrough v. Desbrough, 29 Hun, 592. (b) There was no evidence heard or submitted to show what amount of money would be necessary "to defray the expenses of the suit and to pay respondent's attorneys for their services." In the absence of such testimony the court was without authority to make an order and an allowance for suit money. Cash v. Cash, 180 Ill.App. 31; Hosto v. Hosto, 183 Ill.App. 463; Hunter v. Hunter, 121 Ill.App. 380. (2) (a) Appellant's motion made at the conclusion of the respondent's case to dismiss the action should have been sustained. A suit under section 8295, R. S. 1909, is in the nature of an equitable proceeding, and the findings of the lower court are not binding upon the appellate court, a principle especially applicable in this case, there being no conflict of evidence. Davis v. Davis, 60 Mo.App. 545; Droege v. Droege, 52 Mo.App. 84; Kindorf v. Kindorf, 178 Mo.App. 635; Behrle v. Behrle, 120 Mo.App. 677; Wyrick v. Wyrick, 162 Mo.App. 723. To constitute a right and ground for a cause of action under section 8295, R. S. 1909, there must be an abandonment and a refusal or neglect to maintain the wife. These elements are placed in the statute in the conjunctive. Droege v. Droege, 52 Mo.App. 84; Young v. Young, 78 Mo.App. 225; Polster v. Polster, 145 Mo.App. 606. The payment of one hundred dollars a month continuously, without interruption, from the date of the separation to the day of trial to the respondent by the appellant negatives the allegations of the petition that appellee had failed and refused to contribute to the support of the respondent, and the failure to establish this essential element leaves the respondent without a cause of action under the section upon which the action is bottomed. (c) The separation of a husband from his wife during the pendency of a suit for divorce does not constitute an abandonment within the meaning of the statute. Doyle v. Doyle, 26 Mo. 545. Abandonment and desertion are equivalent terms: Desertion is evidenced by cessation of cohabitation; the intention in the mind of the deserter not to resume cohabitation, and the absence of the other party's consent to the separation or conduct acquiescing in the same. Davis v. Davis, 60 Mo.App. 545; Young v. Young, 78 Mo.App. 225. (3) (a) There should have been no allowance made respondent for alimony pending appeal for the reasons given and the authorities cited under point 2. (b) There should have been no allowance for suit money pending the appeal to the St. Louis Court of Appeals, because there was no allegation in respondent's motion for the allowance that the sum of $ 250 originally allowed as suit money was inadequate and because there was no evidence before the court upon which to predicate an allowance for suit money, attorneys' fees and expenses of printing briefs, etc., as prayed for in the motion. Motley v. Motley, 93 Mo.App. 473, 481; Cash v. Cash, 180 Ill.App. 31; Hosto v. Hosto, 183 Ill.App. 463; Hunter v. Hunter, 121 Ill.App. 380. (4) (a) The evidence permitted by the court to be given by the respondent of things she had learnt from statements made to her by the appellant, her husband, were privileged communications and should not have been allowed over the objections of appellant. (b) It was error to allow respondent to read as evidence against him the statements of appellant in a deposition taken in another suit and at some time prior to the trial of the issues herein when he was present in court and could have been called. Black v. Epstein, 221 Mo. 286.
R. P. & C. B. Williams for respondent.
(1) The question in this case is, can the husband, worth admittedly $ 150,000, and having an income of $ 10,000 to $ 12,000 per year, desert his wife without cause and allow her $ 100 per month for her support, and insist that she shall live upon it? It is not for the husband to say how much he will allow his wife, but the court determines this question by considering her necessities, their station in life and the ability of her husband, and in this case the amount awarded is small enough. Viertel v. Viertel, 212 Mo. 562; Robinson v. Robinson, 137 Mo.App. 93; Libbie v. Libbie, 166 Mo.App. 204; McGrady v. McGrady, 48 Mo.App. 668; Colin v. Colin, 144 N.W. 1005; McKay v. McKay, 91 A. 316. (2) Maintenance pendente lite may be allowed under the maintenance statute. Behrle v. Behrle, 120 Mo.App. 677; Long v. Long, 78 Mo.App. 32; Hedrick v. Hedrick, 157 Mo.App. 636; Wyrick v. Wyrick, 162 Mo.App. 723; Kingsman v. Kingsman, 150 Ill.App. 466; Farrell v. Farrell, 149 Ill.App. 849; Henyen v. Henyen, 182 Ill.App. 26; Dorrance v. Dorrance, 257 Mo. 317. (3) Evidence by admissions of defendant in his deposition taken in October, 1914, as to his financial worth at that time was admissible, and sufficient to show defendant's financial worth at the time of trial, under the doctrine that a state of things once shown to exist will be presumed to continue until the contrary is shown, and this applies to ownership of property and financial worth. First National Bank v. Guardian Trust Co., 187 Mo. 525; Fairbanks v. Coulson, 151 Mo.App. 260; Janssen v. Stone, 60 Mo.App. 402; Lawson on Presumptive Evidence, page 221; Mullen v. Pryor, 12 Mo. 307; Hasking v. St. Louis, 58 Mo. 302; 9 Ency. Evidence, p. 914. (4) Admissions contained in defendant's deposition were admissible to show his financial worth, even though defendant was present in court and might have been called as a witness. Southern Bank v. Nichols, 202 Mo. 309; Wilson v. Salisbury, 167 Mo.App. 191. (5) The judge may decide himself, without evidence, what is a reasonable allowance for suit money. McClaskey v. McClaskey, 68 Mo.App. 199; Robertson v. Robertson, 137 Mo.App. 93.
--Suit by wife against the husband, brought under the provisions of section 8295, Revised Statutes 1909, the petition praying that defendant be ordered to pay plaintiff a reasonable sum each month for her support and maintenance during the pendency of the suit and a reasonable sum for attorney's fees and suit money, to enable her to carry on this action, and that at the final hearing she may be decreed a reasonable sum for her support and maintenance, together with the costs and expenses of the action, and for such other and further relief as may seem meet and equitable. Defendant filed a general denial. Pending final hearing on this, plaintiff moved for the allowance of alimony for her support and suit money and attorney's fees for the prosecution of her suit, pending the suit. This motion was sustained, the court allowing $ 100 a month during the pendency of the suit and $ 350 as suit money.
The cause coming on for final hearing, testimony was introduced on part of plaintiff, respondent here. Without setting out this in detail, it is sufficient to say that it satisfies us that there was evidence tending to show that the husband had deserted his wife and abandoned their home, and so far as the evidence shows, without any justifiable cause for so doing that the wife was without fault, a woman of good character, who had conducted herself as a loving and affectionate wife during the time of the marriage. It also appeared that after abandoning his home, the defendant, appellant here, had voluntarily paid his wife $ 100 a month and appears to have been paying her that amount down to the time of the institution of this suit. The evidence as to the means and financial standing of the husband consisted in part of the testimony of the wife that from her knowledge of the business of her husband and of his affairs and property, she had some knowledge of the property which he owned. Objection was interposed to the wife testifying to what her husband had told her about the property he had in the city of St. Louis, on the ground that it was privileged communications between husband and wife. The objection was overruled, plaintiff excepting. Without the above question being answered, plaintiff was then asked if she was more or less acquainted with the business of...
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