Matthews v. Matthews

• Decision Date: 15 January 1931
• Docket Number: No. 4876.,4876.
• Citation: 34 S.W.2d 518
• Parties: LYDIA T. MATTHEWS, RESPONDENT, v. DAVID S. MATTHEWS, APPELLANT.
• Court: Missouri Court of Appeals

34 S.W.2d 518

LYDIA T. MATTHEWS, RESPONDENT, v. DAVID S. MATTHEWS, APPELLANT.

No. 4876.

Springfield Court of Appeals. Missouri.

January 15, 1931.

Appeal from the Circuit Court of Hickory County. — Hon. C.H. Skinker, Judge.

AFFIRMED.

W.B. Linney, Howard Gray and A.G. Young for appellant.

(1) The record in the divorce case shows all jurisdictional facts and the court found them to be true. The decree, therefore, can be questioned only by appeal or writ of error. Hansford v. Hansford, 34 Mo. App. 262; Smith v. Smith, 188 Mo. App. l.c. 57, 148 S.W. 115; State ex rel. v. Miller, 231 Mo. 500-1; Crane v. Deacon, 253 S.W. 1068, l.c. 1070; Walton v. Walton, 6 S.W. (2d) 1026, l.c. 1027. (2) Section 1802, Revised Statutes 1919, requiring divorce proceedings to be brought in the county where plaintiff resides, is not jurisdictional. Werz v. Werz, 11 Mo. App. 26; Gantt v. Gantt, 49 Mo. App. 3; Lagerholm v. Lagerholm, 133 Mo. App. 307; Nolker v. Nolker, 257 S.W. 798, l.c. 802. (3) After the remarriage of the prevailing party, a divorce should be vacated only upon a very strong showing. 19 C.J., p. 163, sec. 411; also p. 169, sec. 420; 2 Nelson on Marriage and Divorce, p. 1014; Richards v. Richards, 132 Pac. 577; Guggenheim v. Guggenheim, 189 Ill. App. 146, 151; Richardson v. King, 135 N.W. 640; Zeitlin v. Zeitlin, 88 N.E. 762; Paynton v. Paynton, 194 Mich. 504, 160 N.W. 837; Brockman v. Brockman, 157 N.W. 1086; Whittley v. Whittley, 111 N.Y.S. 1078; Cooper v. Cooper, 158 Pac. 1007. (4) A party seeking to set aside a decree of divorce must not be actuated by mercenary motives. 19 C.J., p. 170, sec. 423; Guggenheim v. Guggenheim, 189 Ill. App. 146, 151; Nicholson v. Nicholson, 15 N.E. 223; Zoellner v. Zoellner, 9 N.W. 831; Gans v. Gans, 76 N.J. Eq. 309; Singer v. Singer, 41 Barb, 139.

Ralph B. Nevins and Mercer Arnold for respondent.

(1) The statute in relation to divorce provides that: "The proceedings shall be had in the county where the plaintiff resides." Sec. 1802, R.S. 1919. (2) "If evidence shows residence of plaintiff is in another county the cause will be dismissed." Lagerholm v. Lagerholm, 133 Mo. App. 306. (3) "Plaintiff must have resided within the State for one year next before filing his petition and such residence must not be made up of different periods which together will aggregate a year." Sec. 1804, R.S. 1919; Collins v. Collins, 53 Mo. App. 470. (4) The suit to set aside the decree of divorce instituted by respondent is based upon the fraud exercised by the appellant in obtaining said decree; fraud upon the court and upon the respondent. The Supreme and appellate courts of this State have repeatedly held that in spite of the provisions of section 1811, Revised Statutes 1919, such an action may be maintained, and if supported by proof, the decree of divorce will be set aside. Dorrance v. Dorrance, 242 Mo. 625; Dorrance v. Dorrance, 257 Mo. 317; Lieber v. Lieber, 239 Mo. 1; Cates v. Cates, 202 Mo. App. 352; Hairs v. Hairs, 300 S.W. 540. (5) Remarriage by the party guilty of fraud in the procurement of the divorce is no defense to an action to set the divorce decree aside. Dorrance v. Dorrance, 242 Mo. 625, l.c. 659; Hairs v. Hairs, 300 S.W. 540, l.c. 543; 19 C.J., sec. 441, p. 163; 19 C.J., sec. 420, p. 169; 19 C.J., sec. 415, pp. 166-167. (6) It has been repeatedly held in other cases than those of divorce that a judgment obtained by trickery or fraud which prevented the defendant from making a defense, should, upon proper showing be set aside. Railroad v. Merrielees, 182 Mo. 126, l.c. 142; Howard v. Scott, 225 Mo. 685, l.c. 714.

SMITH, J.

This action was commenced by the respondent, hereinafter called plaintiff, in the circuit court of Hickory county in October, 1929, to set aside a decree of divorce granted the appellant, hereinafter called the defendant, by that court at the November term, 1928, upon the ground that the decree of divorce had been obtained by fraud upon the court and upon the plaintiff herein and that the decree was therefore void.

The seriousness of the effect of the final disposition of this case is so great, affecting not only the litigants in this proceeding, but others who are now so intimately connected with the litigants, as well as the public at large, that necessarily this opinion must be lengthy.

The petition filed in this case is very lengthy, covering about sixteen closely printed pages of the abstract, and since no complaint is made as to the petition, we do not set it out herein, but the petition in substance alleges that the plaintiff is and was at all the times mentioned in the petition the wife of the defendant, and that they were married on or about the 28th day of April, 1903, at Los Angeles, California, and that the defendant fraudulently intending to relieve himself from the bonds of matrimony so contracted, on the ____ day of September, 1928, caused to be filed in the office of the clerk of the circuit court of Hickory county, Missouri, a petition praying for a divorce from this plaintiff upon the false and fraudulently alleged ground that this plaintiff had deserted him on the ____ day of October, 1921, while he and this plaintiff were living together in California, and upon the further false and fraudulently alleged ground that this plaintiff had rendered to him such indignities as to render his condition intolerable; falsely and fraudulently alleging that he was a resident of Hickory county, Missouri, and that, this plaintiff was a nonresident of the State of Missouri, and falsely and fraudulently obtained an order of publication and undertook to get service upon this plaintiff by a publication published in a paper in Hickory county; and that the institution of said suit in Hickory county, and the statements in defendant's divorce petition, and the affidavit that he was a resident of Hickory county were all false and fraudulently made with the intention of defrauding the court into granting him a decree of divorce, and were made as a part of a scheme of the defendant to defraud the court into accepting jurisdiction of said cause and awarding the defendant a decree of divorce, and that such allegations were supported by false and perjured testimony; that the residence of the plaintiff in the divorce suit was not Hickory county, but that said alleged residence was fictitious and fraudulent, and that he immediately left Hickory county upon obtaining the decree of divorce.

The petition alleged that defendant had on the first day of March, 1928, with intent to defraud the plaintiff, filed a petition for divorce in the office of the clerk of the circuit court of Jasper county, Missouri, in which he falsely and fraudulently claimed to be a resident of that county, and attempted to obtain a divorce upon the same grounds as alleged in the petition filed in Hickory county; and attempted to obtain service upon plaintiff by publication; that said suit was returnable to the April term, 1928, of the circuit court of Jasper county; that the plaintiff came from California, employed counsel, filed an answer to that petition and obtained an order for the defendant to pay to her temporary alimony or suit money in the sum of four hundred dollars, and that thereafter on the 29th day of May, 1928, the defendant appeared in the circuit court of Jasper county and voluntarily dismissed his cause of action; that in furtherance of his schemes to obtain by fraud, trickery and perjury a divorce from this plaintiff, the defendant filed in the office of the clerk of the circuit court of Jackson county, Missouri, on the 27th day of June, 1928, a petition for divorce alleging the same grounds for divorce as alleged in the petition filed in Jasper county, and in Hickory county, and alleging in said petition that he was a resident of Jackson county; that said cause was returnable to the September term, 1928, and that an attempt was made to obtain service upon this plaintiff by publication and that when this plaintiff heard of said suit she again came from California to answer same, and again asked in her answer for suit money, and that on the 13th day of September, 1928, the defendant dismissed that suit for divorce; that the defendant on the 18th day of September, 1928, filed his petition for divorce in Hickory county, Missouri. The petition alleged that the defendant was not a resident of Missouri but was in fact a resident of California, and had not resided in Missouri one whole year next before the filing of his petitions for divorce.

The petition alleged that in addition to the false and fraudulent grounds for divorce and the false and fraudulent allegations that the defendant was a resident of Hickory county, the defendant supported the allegations of his petition for divorce by false and perjured testimony and thereby induced the court to believe him to be the innocent and injured party, and that the plaintiff had deserted him and had rendered his condition intolerable, when the defendant knew that if plaintiff was given an opportunity to defend against the charges that he could not obtain a divorce.

The petition alleged that the plaintiff had a good, sufficient and valid defense to each and all of the allegations contained in defendant's petition, and that it is not true that she deserted him in October, 1921, or upon any other date, or that she rendered his condition in life intolerable, or mistreated him in any way; but that the defendant rendered unto her such indignities as to render her condition intolerable, and that petition sets out the indignities of the defendant towards her as being an habitual drunkard, failure and refusal to support her and her child born of the marriage, failure to work or engage in employment and his persistence in engaging in drunken brawls to her great shame and mortification, and in associating with men and women of questionable and immoral character, and conducting, himself so as to cause her to fear for her health if she should...