Phelps v. Phelps

• Decision Date: 04 February 1952
• Docket Number: No. 21597,21597
• Citation: 241 Mo.App. 1202,246 S.W.2d 838
• Parties: PHELPS v. PHELPS.
• Court: Missouri Court of Appeals

Page 838

246 S.W.2d 838

241 Mo.App. 1202

PHELPS v. PHELPS.

No. 21597.

Kansas City Court of Appeals, Missouri.

Feb. 4, 1952.

L. F. Cottey, Lancaster, for appellant.

No brief filed for respondent.

BOUR, Commissioner.

This action for divorce was brought in the circuit court of Putnam County by the wife. In her petition plaintiff relied upon alleged intolerable indignities as grounds for divorce. Defendant's answer admitted that he was married to plaintiff on March 4, 1947, and that they lived together as husband and wife from said date until on or about March 5, 1949, but denied all other allegations in plaintiff's petition. Further answering by way of cross-petition, defendant charged that plaintiff had subjected him to intolerable indignities; and as a separate ground for divorce, he alleged that on or about March 5, 1949, plaintiff deserted him without cause and 'that such desertion has existed continuously for more than one whole year prior to the filing of plaintiff's petition herein and prior to the filing of this cross bill.' Other allegations in the pleadings will be referred to in the course of the opinion.

The trial resulted in a finding in favor of plaintiff on her petition, and against defendant on his cross-petition. A decree was therefore entered dissolving the marriage and plaintiff was awarded $750 alimony in gross and $100 as an attorney's fee. Defendant has appealed.

The points relied upon by defendant are, in substance, (1) that the court erred in permitting plaintiff to testify to confidential communications between himself and plaintiff; (2) that even if the testimony in question was properly admitted, still plaintiff failed to prove any grounds for divorce, and failed to show that she was the innocent party; (3) that if defendant was guilty of any misconduct, it was condoned; (4) that the court lacked jurisdiction to grant plaintiff a decree of divorce; and (5) that the court erred in refusing to grant defendant a divorce on his cross-petition. Plaintiff filed no brief in this court.

It is our duty to review the case upon both the law and the evidence and reach our own conclusions. However, we are not authorized to set aside the judgment unless clearly erroneous, and due regard must be given to the opportunity of the trial court to judge of the credibility of the witnesses. R.S.1949, Sec. 510.310, subd. 4, V.A.M.S.

It is obvious that defendant's fourth point must be considered first. In support of his contention that the trial court lacked jurisdiction to grant plaintiff a divorce, defendant states: 'Absent a special pleading (not found in her petition) that the acts complained of were committed while one or both of the parties resided in this state, I have always understood it to be a jurisdictional requirement that plaintiff prove she has been a resident of Missouri for one whole year next preceding the filing of her divorce petition. R.S.1949, Sec. 452.050, V.A.M.S. Her testimony is to the contrary.' The section of the statute cited by defendant reads as follows: 'No person shall be entitled to a divorce from the bonds of matrimony who has not resided within the state one whole year next before filing of the petition, unless the offense or injury complained of was committed with this state, or while one or both of the parties resided within this state; provided, however, that when the plaintiff shall have resided within this state one whole year next before the filing of petition and the defendant shall plead and prove sufficient facts, as provided in this chapter, which shall entitle such defendant to a divorce, the same shall be granted although the defendant may not be a resident of this state prior to or at the time such divorce be granted.' The proviso, which was added by amendment in 1943, is not applicable to this case. We are concerned only with the preceding part of the section which has been in effect since 1825. See Hays v. Hays, 324 Mo. 810, 24 S.W.2d 997.

It has been determined in a long line of cases beginning with Cheatham v. Cheatham, 10 Mo. 296, that a petition for divorce which does not allege that the plaintiff had resided within this state on whole year next before the filing of the petition, or that the offenses complained of were committed within this state, or while one or both of the parties resided therein, is insufficient to support a judgment against a direct attack by appeal. Thus, where the petition for divorce failed to allege the existence of any of the jurisdictional facts mentioned in the statute, and the trial resulted in a decree in favor of the plaintiff, it was held on appeal that the trial court had no jurisdiction over the subject-matter of the plaintiff's action, even though the evidence was sufficient to warrant a finding that the plaintiff had resided within this state one whole year next before the filing of the petition, and that the various indignities complained of were committed within this state while both of the parties resided therein. Gooding v. Gooding, 239 Mo.App. 1000, 197 S.W.2d 984, where the court in discussing the earlier cases, said, 197 S.W.2d loc. cit. 985: 'The Stansbury case, supra [Stansbury v. Stansbury, 118 Mo.App. 427, 94 S.W. 566], is to the same effect. In a consideration of that case the court states, 118 Mo.App. loc. cit. 430, 94 S.W. 566: 'It is not denied that the existence of one of the facts mentioned in the statute is an indispensable element constitutive of the right to maintain an action for divorce, and that without it the whole proceeding is coram non judice for lack of jurisdiction over the subject-matter.' The opinion then proceeds to point out the distinction and the different rules applicable to the determination of a case when the judgment is questioned by a direct appeal, and when an action is instituted to set aside a decree which had become final. In conclusion the court states 118 Mo.App. on page 432, 94 S.W. 566: 'It is so well settled that facts necessary to the conferring of jurisdiction over the subject-matter must be pleaded as well as proven that further discussion of the subject would be superfluous.'' It was held in the Gooding case that the rule had not been changed by section 82 of the Civil Code, R.S.1949, Sec. 509.500, V.A.M.S., which authorizes the amendment of pleadings to conform to the evidence and provides that failure to so amend shall not affect the result of the trial of issues not raised by the pleadings but tried by consent of the parties. When defendant files a cross-petition for divorce, it is governed by the same rule, Pike v. Pike, 239 Mo.App. 655, 193 S.W.2d 637, unless the proviso added to the statute in 1943 is applicable.

The petition in the instant case did not allege that the offenses complained of were committed within this state, or while one or both of the parties resided therein. However, paragraph five of plaintiff's petition contained the following averments: 'Plaintiff states that she is a resident of Putnam County, Missouri, although temporarily in Dallas, Texas where she has employment, and that she has lived in this state one whole year and more next preceding the filing of this petition.' It is evident that plaintiff used the word 'lived' as the equivalent of 'resided.' See Daugherty v. Nelson, Mo.App., 234 S.W.2d 353, 358. It is not essential that the allegation follow the precise language of the statute in this respect. See Coulter v. Coulter, 124 Mo.App. 149, 152, 100 S.W. 1134, 1135. Defendant, in his answer, specifically denied the allegations of paragraph five of plaintiff's petition. Further answering, defendant alleged 'that plaintiff is not a resident of the State of Missouri, but is a resident of the State of Texas; that she was a resident of the State of Texas at the date of their marriage, and for many years prior thereto; that she returned to Texas on or about the 5th day of March, 1949, and has since continuously resided in Texes of her own free will and accord, with the intention never to return to or reside in Missouri; that for those reasons plaintiff is not entitled to maintain this action for divorce in Missouri, and this court has no jurisdiction to render a decree herein in her favor.'

The facts relating to the issue of plaintiff's residence are as follows: Plaintiff wrote to defendant in July, 1946, after seeing his name in a matrimonial magazine. At that time plaintiff, a widow and graduate nurse, resided in Dallas, Texas, where she had lived for many years. Defendant, a widower, lived on a forty-three acre farm in Putnam County, Missouri. Plaintiff was fifty-five years of age and defendant sixty-seven. After some correspondence between the parties, defendant invited plaintiff 'to come up.' She arrived at defendant's farm on November 21, 1946, and lived there for the next three and a half months. The parties were married on March 4, 1947, and lived together on the farm until March 5, 1949, when plaintiff left defendant and returned to Dallas, Texas. The evening before her departure, plaintiff received a telegram stating that her daughter was ill, and she told defendant she was going to Texas for a time to care for the daughter. She admitted, however, that she decided to leave defendant 'maybe two or three weeks' before the separation, and that when she was in the act of leaving on the morning of March 5th, she did not disclose her real intention to him. After an absence of seventeen days, and on March 22, 1949, plaintiff returned with her daughter, removed the remainder of her clothing and certain household goods from defendant's home, loaded the same into a truck, and then went back to Dallas, Texas. Before leaving Putnam County, however, she consulted an attorney who prepared a petition for divorce wherein plaintiff charged her husband with general indignities. This petition was filed in the circuit court of Putnam County on March 23, 1949. On February 1, 1950, that suit was dismissed for failure to prosecute....