Phillips v. Phillips

• Decision Date: 07 March 1949
• Docket Number: 21061,21062
• Citation: 219 S.W.2d 249
• Parties: PHILLIPS v. PHILLIPS
• Court: Kansas Court of Appeals

219 S.W.2d 249

PHILLIPS v. PHILLIPS

Nos. 21061, 21062

Court of Appeals of Missouri, Kansas City

March 7, 1949

E. R Morrison, R. L. Hecker and Morrison, Nugent, Berger, Hecker & Buck, all of Kansas City, for appellant.

Wm. G Boatright and Wm. E. Byers, both of Kansas City, for respondent.

OPINION

BLAND

This is a suit for divorce. Defendant filed a cross bill in which he asks for a divorce from plaintiff. The court rendered a decree granting a divorce to plaintiff and allowing her $ 200 per month alimony. Both parties have appealed, plaintiff claiming that the amount of alimony is inadequate, and defendant claiming that the court erred in granting plaintiff a divorce and refusing a divorce to the defendant and that in any event, if plaintiff is entitled to a divorce she is not entitled to any alimony. The two appeals have been consolidated.

The facts show that plaintiff and defendant were married on February 1, 1930. At that time plaintiff was 35 years of age and defendant 46 years of age. At the time of the trial plaintiff was 52 years of age and defendant 64 years of age. No child was born of the marriage. Plaintiff had been married and divorced on two previous occasions. This is defendant's first marriage. At the time of her marriage to defendant plaintiff had a boy 12 years of age.

The parties spent their honeymoon in Florida. Plaintiff testified that during their stay there they saw some pictures that they both admired and thinking that it would be an appropriate remembrance of their wedding trip she bought one of the pictures and gave it to her husband, whereupon, he stated: 'Mary if you expect me to do anything for you, you have got to learn to do things for me. You bought that because you are selfish, you bought that for yourself, you did not buy that for me.'

At the time of the marriage defendant had been a long time resident of Kansas City. He was president of the Victor L. Phillips Company which dealt in construction machinery. He had been in active business in Kansas City for many years. After the honeymoon trip to Florida they went to live in defendant's apartment where he had been living as a bachelor. They remained there for a short time, then moved to a duplex on 51st Street in Kansas City. This was a nice home. No complaint is made by plaintiff concerning it. They lived in the duplex for about a year and a half. Defendant supplied plaintiff with a part time maid to assist her with the work. When they were married defendant insisted that plaintiff's son should not live with them for a year and a half but that they should live alone. This was agreeable to plaintiff and the son, during that time, attended military school. After the expiration of the year and a half defendant rented a larger home on 59th Street Terrace. It had 3 bedrooms. The son then came to live with the parties and attended high school. They lived in this house 2 years, during which time defendant supplied plaintiff with a part time maid to assist her with her work. After about 2 years they moved to a house on Jarboe Street. They lived there for several years, when defendant decided that the house was not worth the mortgage upon it and he, thereupon, rented a house on 77th Street where plaintiff and defendant lived until July 1940. In March 1940 defendant went to California where he became a member of a Hindu cult or sect. Defendant described this as a 'Spiritual Science' called 'Radaha Soami.' This sect does not have a church. The members do not believe in churches. Defendant did his worshiping in his bedroom and on the farm 'under a tree or along a brook. We have no churches and no organized body of any kind, no churches.' About this time defendant told plaintiff that he preferred taking his vacations alone. From that time on he went to Florida for his vacations and she visited her sisters and relatives in California. Plaintiff testified that defendant told her: 'Well, that is why he wanted to take his vacations alone, was so that he could meditate and read, and each morning, he came down, had his fruit juice and then went back upstairs to meditate and read for about a half hour, twenty minutes, then I was supposed to watch the clock and call him down in about twenty minutes for his breakfast. He couldn't hear me call him because he closed the door and I had to ring a little bell in the back stairway for him to come down for breakfast when the coffee was ready.' Defendant testified that the reason they spent their vacations separately was because plaintiff said that she wanted to visit her sisters in California and defendant could go to Florida.

When they were first married defendant gave plaintiff no regular allowance but afterwards he gave her $ 150 per month, out of which she was to pay her personal expenses and those in connection with the running of the house, including the grocery bills and the hiring of help. In July 1940 defendant wanted plaintiff to hire extra help to take care of the lawn. She testified that she was paying all of the expenses out of the $ 150 per month including the rent and she told defendant that she did not have enough money 'left over to pay for help outside.' About the month of October he said she could get an apartment and he would go to live at the Club. There were no harsh words. Defendant gave no explanation at all. She offered to help pack defendant's things. Defendant told her to move first. She moved into an apartment taking part of the furniture. Defendant stayed at the house for sometime and afterwards he took a room on Meyer Boulevard.

Defendant's version of this separation was that he knew nothing of plaintiff's intentions to leave the home; that he came home one night and found plaintiff with the movers moving out all of the furniture and furnishings; that she gave defendant no explanation as to why she was moving the furniture nor where she was going; that 'out of a clear sky I went home one might and found my house practically bare.'

After moving out, and on November 30, 1940, plaintiff filed suit for separate maintenance. Plaintiff's brother, Raymond, who was then living, but now deceased, attempted a reconciliation. He came to Kansas City from Hastings, Nebraska, where he lived and, as a result, a meeting between plaintiff and defendant took place resulting in a reconciliation. Defendant testified that he 'took plaintiff back' on the understanding that her son, Jack, who was then out of college and 24 years of age, should go his own way and not live any more with the parties; that Jack would be welcome in the home for a visit at any time he saw fit provided his stay was 'reasonable.' During the years that Jack lived with the parties defendant pail all of his expenses including the expenses of the home, food, laundry, clothing and tuition when he was in military school. Defendant never adopted Jack. Plaintiff, at the trial, characterized defendant's conduct in caring for her son as a generous thing. She admitted that defendant was not only kind and generous but was never cross or rude to Jack. The record otherwise shows that the relation between defendant and Jack was always pleasant, friendly and cordial. One of defendant's witnesses referred to Jack as a 'lovely boy.' Defendant's objection to Jack living at the house was based on the claim that plaintiff devoted too much time and attention to him. He testified that she was not only mothering him with love but that she was smothering him with it. Plaintiff testified that the basis of the reconciliation was that defendant should increase her allowance to $ 200 per month. Plaintiff testified that defendant might have insisted that Jack should not make his home with them but she did not recollect it; that as a matter of fact there probably was nothing discussed about Jack at that time as he was not living with them. Jack also testified that he was not living there when they separate. Defendant did not definitely state that Jack was living there at the time of the separation.

Prior to the separation defendant had purchased some lots on Holmes Street with the intention of building two houses on them for sale. After the separation defendant advanced the money for the building of these houses which, according to plaintiff's testimony, were built under her supervision. One of the houses was built at 7706 Holmes Street. This was a modern comfortable home. When this home was built a mortgage was placed upon it and it was agreed that out of plaintiff's allowance of $ 200 per month she should take care of the payments on the loan. There is evidence in the record that her allowance was increased from $ 150 to $ 200 per month in order that she should have funds to take care of these payments. Her allowance remained at $ 200 per month as long as they lived in the home on Holmes Street and were making payments on the home. The two houses built on Holmes Street were sold at a profit of $ 2000 or $ 3000 according to plaintiff's testimony.

Not long after plaintiff and defendant were married they became interested in the teachings of the Unity School of Christianity. They attended services frequently, almost every Sunday, for quite a long time. Plaintiff testified that defendant was a man who liked the outdoors, liked to work in the sunshine and to work outdoors physically, and that she too liked it. Finally they bought 7 acres of vacant land near the Unity Farm, with the idea that they eventually would build a home there. They would go out to what they called the 'acreage' to picnic, and make a little garden. They planted some fruit trees and otherwise used it as a recreation spot.

During the time they were living on Holmes Street and making their weekend trips to the Unity Farm acreage, they became interested in the purchase of a farm. They decided...