Lewis v. Lewis

Decision Date06 December 1943
Docket NumberNo. 20312.,20312.
Citation176 S.W.2d 556
PartiesG.W. LEWIS, RESPONDENT, v. EMMA LEWIS, APPELLANT.
CourtMissouri Court of Appeals

Appeal from Harrison Circuit Court. Hon. V.C. Rose, Judge.

AFFIRMED.

C.C. Ross and Charles J. Engel for appellant.

(1) The court could not entertain jurisdiction of this case because the respondent did not reside in the State of Missouri one whole year next before filing of the petition. R.S. 1939, sec. 1517; Coulter v. Coulter, 124 Mo. App. 149, 100 S.W. 1134; Garver v. Garver, 130 S.W. 369; Keller v. Keller, 129 S.W. 492; Amerland v. Amerland, 173 S.W. 104; Robinson v. Robinson, 129 S.W. 725; Wright v. Wright, 165 S.W. 870. (2) The court has no jurisdiction over the subject-matter of the action because the offense complained of was not committed within the State of Missouri. R.S. 1939, sec. 1517; Clark v. Clark, 177 S.W. 1077. (3) The court had no jurisdiction over the appellant because she was not served with process within the State of Missouri, did not appear personally or by attorney in the action, nor did she execute and file a valid entry of appearance. (4) The decree rendered in favor of the respondent in this case is void because it was obtained by the exercise of fraud and deceit and by false testimony. Dorrance v. Dorrance, 242 Mo. 625, 148 S.W. 94; Irvine v. Leyh, 102 Mo. 200, 16 S.W. 10; Jones v. Jones, 218 Mo. App. 301, 272 S.W. 1038; Hairs v. Hairs, 300 S.W. 540. (5) No innocent third person will suffer if this decree is set aside because the second wife must have carried on a clandestine courtship with respondent prior to the divorce and therefore is not an innocent person, and because the legitimacy of the child of the second marriage will not be affected. Cherry v. Cherry, 35 S.W. (2d) 659; Ch. 50, R.S. 1845, Sec. 10. (6) The removal and destruction of the recorded papers in this case is detrimental to the appellant's case. Since the respondent's act is a crime under the statutes of the State of Missouri, he should not profit by his criminal act. Ch. 13, R.S., Secs. 4464 and 4465.

R.E. Moulthrop for respondent.

(1) Residence is largely a matter of intention evidenced by some act or acts in conformity with such intention, and that a residence once established within this State and not thereafter changed is sufficient for the maintenance of a divorce action, notwithstanding the physical absence of the resident for a short or long period. In the case of an Army officer, it would be peculiarly arbitrary and unjust to deprive him the right accorded another citizen merely because of his physical absence from the State in the performance of his duties as a soldier. Trigg v. Trigg, 41 S.W. (2d) 583; Kennedy v. Kennedy, 23 S.W. (2d) 1089; State v. Wiley, 160 S.W. (2d) 677, 686; Finley v. Finley, 6 S.W. (2d) 1006. (2) The conclusion of the trial judge should not be disturbed unless an obviously unjust decision was reached. Darling v. Darling, 167 S.W. 1166; Endsley v. Endsley, 89 Mo. App. 596; Heinrichs v. Heinrichs, 84 Mo. App. 27; Torlotting v. Torlotting, 82 Mo. App. 192. (3) In an independent equitable action to set aside a judgment on the ground of fraud, the burden rests upon the party seeking such relief to establish the alleged fraud by evidence and proof that is so cogent, clear, strong, and convincing as to leave no reasonable doubt of such fraud and the fraud must be in the procurement of the judgment, as distinguished from matters going to the merits of the cause. Wuelker v. Maxwell, 70 S.W. (2d) 1100; Lieber v. Lieber, 143 S.W. 458, 467; Hockenberry v. Cooper County State Bank, 88 S.W. (2d) 1031, 1036. (4) The plaintiff was in no position to ask the assistance of a court of equity, there being no equity in his bill. Buffington v. Carty, 93 S.W. 779, 780; Blass v. Blass, 186 S.W. 1094; Lieber v. Lieber, 143 S.W. 458, 475. (5) In divorce cases where there is a great conflict in the evidence, much weight will be given to the finding of the trial court. Maget v. Maget, 85 Mo. App. 6. (6) As the statutes of Missouri prohibit the reversal, annulment or modification of a divorce decree unless certain requirements are first complied with, and no compliance having here been made, appellant must stand upon fraud alone to authorize a setting aside of the decree. In this appellant has manifestly failed. R.S. Mo. 1939, Secs. 1524, 1525.

SPERRY, C.

This is a suit in equity, filed in the October Term, 1942, to set aside a divorce decree granted to C.W. Lewis, in the October Term, 1931. In the divorce suit C.W. Lewis was plaintiff and Emma Lewis was defendant. In the instant case Emma Lewis is plaintiff and C.W. Lewis is defendant. They will be so referred to herein. Judgment was for defendant and plaintiff appeals.

The grounds upon which relief is sought by plaintiff are lack of jurisdiction and fraud. All of the evidence of record was offered by plaintiff, defendant having defaulted.

Plaintiff testified that she was "impressed" that defendant was born in New Mexico; that she met him at Dayton, Ohio, in April, 1919, where he was a member of the United States Air Service at Wright Field; that shortly thereafter defendant was discharged and, in the autumn of 1919, entered Michigan University, at Ann Arbor; and that they were married in July, 1920. She identified a marriage certificate which was received in evidence and which recites the following:

"THIS CERTIFIES That Charles W. Lewis of Los Angeles, Cal., and Emma J. Rennison, of Louisville, Ky., were by me united in the bonds of MARRIAGE at Utica, N.Y., on the first day of July, in the year of our Lord Nineteen Hundred and twenty conformably to the ordinance of God and the Laws of the State."

She testified that, after their marriage, they lived at Ann Arbor, Michigan, where she worked and where defendant attended the university, from which he graduated in 1922; that after his graduation, they continued living at Ann Arbor, while defendant worked for his master's degree, until he suffered a physical breakdown caused by tuberculosis; that they went to California where they lived in the desert for a few weeks until defendant recovered his health and accepted a position in the diplomatic service of the United States; and that they left for England in May, 1923, to begin defendant's diplomatic duties.

She further testified to the effect that defendant had never been in Missouri from the time she met him until they sailed for England, and that he had continued in the diplomatic service of the government from that time until the date of the trial in the instant case, at which time he was stationed at Washington, D.C. She stated that they lived continuously in England, after leaving California, until March, 1926, when she returned to this country and visited defendant's aunts, who lived at Bethany. Plaintiff remained in Bethany for about three months, at the end of which time defendant returned to Washington and, after five days there, they both left for Mexico. From Mexico defendant was transferred to Nova Scotia, plaintiff accompanying him, where they remained until about October 1, 1931, when he took a leave of absence and they drove to Washington, and from thence to Springfield, Missouri. During all of this time, she testified, defendant was not in Missouri.

She stated that while they were in Springfield, she suggested that they visit his aunts at Bethany; that nothing had been or was said about a divorce; that they arrived in Bethany on Saturday, October 11, 1931, at 12:00 noon, and stayed at a hotel, occupying the same room; that defendant played golf Sunday with some former high school classmates, and that they were entertained at dinner that evening by another of his former schoolmates; that nothing was said about a divorce; and that Monday they visited the cemetery in the morning and attended a dinner party that evening. She testified that defendant told her, sometime during their stay at Bethany, that she was ill and needed a rest and that he was going to leave her in California and go to his post in Nova Scotia alone; that she asked if this was a "declaration of independence" and "he said no, I think it would be a good thing to go on my own a while and you could go on your own;" that he presented her with a paper which she signed but which she did not read, and which, he told her, was a provision for her separate support; that he told her he had an appointment with some friends Monday evening and that she made an excuse so that he could leave the dinner party and fulfill it; that he was gone about fifteen minutes and returned; that they left for California the next day; that they lived together as husband and wife in California for a month and then he left for Nova Scotia; that they wrote each other regularly while he was in Nova Scotia at that time; that he lived with her for five days at the home of her sister in Syracuse, New York, in December, 1932, and went from there to India, in his work; that he told her before he left for India that they were merely living apart and that she did not know, until shortly after he left, that a divorce had been granted in October, 1931 and that defendant had remarried November 11, 1931. Defendant sent her $150 per month from 1931, until sometime in 1940, when he reduced it to $50, and later discontinued remittances entirely.

Plaintiff offered the testimony of a reputable attorney of Bethany who testified that defendant wrote him sometime prior to October, 1931, about getting a divorce in Bethany; that on Monday, the date the divorce was granted, defendant consulted him in his office and that he prepared a divorce petition for defendant, as plaintiff therein, as against plaintiff in this case, and a written entry of appearance; that about 4:30 P.M., on the same day, plaintiff and defendant, together, came to his office and that defendant in that suit (plaintiff in this case) signed the entry of appearance; that he, the attorney, filed the papers at about...

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