McGehee v. McGehee

• Decision Date: 20 October 1969
• Docket Number: No. 8882,8882
• Parties: Joseph J. McGEHEE, Plaintiff-Respondent, v. Myrtle M. McGEHEE, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 300

448 S.W.2d 300

Joseph J. McGEHEE, Plaintiff-Respondent, v. Myrtle M. McGEHEE, Defendant-Appellant.

No. 8882.

Springfield Court of Appeals, Missouri.

Oct. 20, 1969.

Esco V. Kell, West Plains, for defendant-appellant.

Harold L. Henry, West Plains, for plaintiff-respondent.

TITUS, Judge.

The second marriage for both the 82 year old plaintiff-husband and the 74 year old defendant-wife, according to the accounts of each, survived for much of its 37 years amidst circumstances foreign to the connubial bliss enjoyed ever after by the heroes and heroines of storybook fame. Concluding that 'I just don't want to be bothered the rest of my life' with the indignities allegedly offered by the wife to render his condition intolerable (§ 452.010, V.A.M.S.), the husband sued for divorce and the Circuit Court of Howell County answered his prayer. The wife, who asseverates she does not want the bonds of matrimony put asunder, has appealed.

As they appear in her brief, defendant's 'Points Relied On' present studies in abstraction penned heedless of Civil Rules 83.05(a)(3) and (e), witness: 'I. That the court erred in entering judgment for the plaintiff, because plaintiff's evidence is insufficient to justify a decree of divorce for plaintiff on the ground of general indignities. II. That the court erred in entering judgment for plaintiff, because the judgment is against the evidence and the greater weight of the evidence. III. The rule is that in a divorce case, the Appellate Court will exercise its duty to try the case de novo and enter such judgment in the case as the trial court should have entered from a review of the evidence.'

We perceive Point III as the assertion of an abstract principle of law that preserves nothing for review (Bowers v. Spinaio, Mo.App., 421 S.W.2d 790, 792--793(5)) because there is no effort made to show how the axiom relates to the action of the court as required by the rule. Yates v. White River Valley Electric Co-Operative, Mo.App., 414 S.W.2d 808, 811(3).

It has been repeatedly held that assignment II, supra, presents nothing for review on appeal (School Services of Missouri, Inc. v. Caton, Mo.App., 419 S.W.2d 954, 956(1)), yet this abstraction, through total abandonment to tolerance, has been interpolated into an advisement to 'the court that (defendant) contends that the evidence was insufficient to support the judgment.' Modes v. Modes, Mo.App., 402 S.W.2d 14, 15(2). If we, too, so consider assignment II, it is no more nor less than assignment I--which all told leaves us with the single question of the sufficiency of the evidence to support the judgment. Civil Rule 73.01(d), V.A.M.R. Although the last cited rule provides, inter alia, that in court tried cases 'the appellate court shall review the case upon both the law and the evidence,' it need perform this function 'only in respect to the specific matters urged by appellant as constituting error. It does not review the whole case on its own initiative to determine what result it would have reached if it were sitting as the trial judge.' Schlanger v. Simon, Mo., 339 S.W.2d 825, 828(1).

One reason for the rule requiring the 'Points Relied On' to state specifically wherein and why an appellant contends the trial court was wrong, is to facilitate a recitation in the opinion of only those facts necessary to decide the issues presented on appeal. We have not been favored with such a guide, but rather than execute a summary disposition of the appeal because of this deficiency in the brief, we seek out defendant's argument in an effort to ascertain the exact issues involved to permit disposition of the case on its merits. Civil Rule 83.24, V.A.M.R. According to our understanding, defendant urges in her argument that plaintiff's evidence did not 'measure up' to the proof necessary to establish defendant's guilt of indignities, principally because the proffered testimony was illustrative of only infrequent acts or words of misconduct. This is premised upon the oft repeated declarations that to constitute indignities sufficient to warrant the granting of a divorce, the episodes complained of must amount to an intolerable continuous course of conduct that connotes settled hatred and a plain manifestation of alienation and estrangement equaling a species of mental cruelty, and must evidence a course of action whereby the other's condition is rendered intolerable. A single act or word, or occasional acts or words, will not suffice. Hearn v. Hearn, Mo.App., 437 S.W.2d 153, 155--156(5--8).

The gist of plaintiff's complaints was that over a number of years his wife fussed at and quarreled with him continuously, that 'she wanted to be boss and has been for a long time. * * * (If) she'd take a notion for anything, well it had to be that a way. * * * But every little thing, it builds up. You know, it gets worse. * * * She's called me different vile names. * * * Called me a son-of-a-bitch many times.' Defendant testified the plaintiff 'never heard me call him no names like that,' and while she 'supposed' the quarreling had gone on for a long time, she insisted the plaintiff 'always started the fussing * * * he always started all of the quarrels with me.' To minimize the ferocity of these verbal altercations defendant's brief alludes to them as 'the small bickering * * * a normal happening in a long life'; but on the witness stand defendant avowed the quarrels were of such intensity that when they occurred she 'had to go out the back door and stay in the back yard or go to the wash house to get away from him.' Plaintiff's married daughter related that the pair 'didn't get along' from the time she was 14 or 15 years old, whereas defendant's son and daughter-in-law opined that plaintiff and defendant encountered controversies and difficulties 'no more than anyone has,' whatever that may mean. An across-the-street neighbor of the litigants asserted that 'over quite a period of time' he had overheard the defendant fussing at the plaintiff and 'heard her call him names * * * heard her call him a son-of-a-bitch * * * two or three (times).'

An incident which transpired about the first of July 1968 generated a considerable amount of testimony and divergent versions of the fracas. Plaintiff had been visiting with one of his daughters in Arkansas and got 'some of my kinfolks to take me home' to get some clothing. When they arrived, according to plaintiff and his kith, the defendant 'told us to get * * * off her property and I was in a two seated car and I got my right foot on the ground and she said 'get in that car and get out of here.' * * * Like I didn't have no authority there. * * * And that ain't the first time she told me to get my clothes and leave.' Defendant denied she told the plaintiff to leave but 'just went out there and told these others to get out of my driveway and for him to come on to the house and he left.' A deputy sheriff was...