Rankin v. Rankin

• Decision Date: 20 May 1929
• Docket Number: No. 16626.,16626.
• Citation: 17 S.W.2d 381
• Parties: RANKIN v. RANKIN.
• Court: Missouri Court of Appeals

17 S.W.2d 381

RANKIN v. RANKIN.

No. 16626.

Kansas City Court of Appeals. Missouri.

May 20, 1929.

Appeal from Circuit Court, Jackson County; Ben Terte, Judge.

"Not to be officially published."

Suit for divorce by Lenora L. Rankin against Victor A. Rankin, in which defendant filed a cross-bill. Decree for defendant on his cross-bill, and plaintiff appeals. Affirmed.

Harding, Murphy & Tucker, of Kansas City, for appellant.

W. W. Filkin and Madden, Freeman & Madden, all of Kansas City, for respondent.

BLAND, J.

This is a suit for divorce. The court denied plaintiff's bill and granted defendant a divorce upon his cross-bill. Plaintiff has appealed, complaining of the action of the court in both particulars.

The facts show that the parties have been married three times. The last marriage lasted about three and one-half months. They were first married on December 11th, 1911, when plaintiff was twenty-four years of age and defendant thirty-nine or forty. They lived together about fifteen or sixteen months, and on January 19th, 1915, defendant herein obtained a noncontested divorce from plaintiff on the ground of abandonment. A son was born to the parties on December 24th, 1913, after the separation which occurred in April of that year. The parties were again married on December 9th, 1916, and lived together about four years when they were again divorced on January 31st, 1921. At this time defendant sued plaintiff for divorce, but the divorce was granted to plaintiff herein on her cross-bill, there being no contest at the trial. In the divorce proceeding in 1921, the custody of the son was awarded to the plaintiff herein with the right to the defendant to visit him and have him during the summer vacation and at all reasonable and proper times. At the time of these two divorces there was a property settlement in which the defendant herein paid plaintiff substantial alimony in gross. The parties lived in the state of Oklahoma during the existence of the first two marriages. The last marriage occurred on August 7th, 1927, and the parties separated on November 25th, 1927, when plaintiff refused longer to live with defendant. It is stated in the briefs that the son is now deceased, having departed this life after this case was tried.

No one could read the record in this case without coming to the conclusion that this last marriage was foredoomed to be a failure on account of the attitude of plaintiff in entering into it. The fact that the marriage lasted for such a short period would seem to suggest that there was something radically wrong with it from its very beginning. We are convinced from reading this record that plaintiff had no affection for the defendant at the time she married him the last time; that her motives were largely mercenary, although she told defendant during their courtship prior to that event that she loved him and manifested toward him great affection. She did not tell him that she did not care for him when she married him, but such not only seems to be the fact, but her feeling for him was not particularly friendly.

It is held that even where there is no agreement that the parties are to love and cherish each other that such an agreement is implied in the contract of marriage unless eliminated by agreement of the parties, and that if one party has no love for the other but detests the thought of living with him and fails to make that condition known he or she is guilty of conduct tantamount to a fraud. Parks v. Marshall (Mo. Sup.) 14 S.W.(2d) 590. All human-kind are possessed of faults and where one of the parties to the marriage has no affection for the other it is natural that he or she should exaggerate the other's defects, in other words make mountains out of molehills. Such an attitude must inevitably result in the party so entering into such a marriage finally coming to the conclusion that the other's faults are unbearable and constitute the gravest indignities. The evidence shows that the defendant while possessing some of the finest attributes had some habits which show that he was by no means perfect, but of which habits plaintiff was fully cognizant prior to her last marriage to him.

There is no complaint on the part of the plaintiff that defendant was not very liberal toward her in the matter of money. In fact the record shows that his prodigality in money matters was marked; that he consented to her having the finest wearing apparel; that they lived in a very fine rented house in one of the best residence locations in Kansas City, where they made their home during the last marriage. In fact we do not think that defendant has any cause to complain of the extravagant habits of plaintiff for the reason, if he did not encourage them, he at least consented with little, if any, protest.

At the time of their last marriage defendant had for thirty years been connected with a wholesale drug concern in Kansas City. At that time he was sales-manager earning a salary of $350.00 per month. He had other property of the value of $53,000.00, the income from which, together with his salary, amounted to about $500.00 per month. Plaintiff received an automobile, $5,000.00 or $6,000.00 worth of furniture and the sum of $6,000.00 in money as alimony in gross at the time of her second divorce. Five thousand dollars of this money she invested in her brother's business and went to work for him at a salary of $200.00 per month. She worked at that salary for over five years. Aside from this money during the period of their last separation, or from 1921 to 1927, several thousand dollars was voluntarily contributed in payments made from time to time by defendant to her, other than the money he advanced for the support of their son. The evidence shows that there was no improper relations whatever between the parties during this separation, but defendant testified that the reason he made these payments to his ex-wife was in order that he might have more ready access to his son in whom he was greatly interested.

About a year before the last marriage plaintiff took the boy to California and returned therefrom in February, 1921, and again went to work for her brother at a salary of $200.00 per month. According to defendant it was plaintiff who made the advances which finally culminated in their last marriage; that when she returned from California she called him up over the telephone several times and finally persuaded him to take her to lunch. He testified that she told him that she was "broke" or without funds. The evidence shows that some time before this she had withdrawn her money from her brother's business. According to plaintiff's evidence it was defendant who made the advances. She denied that she told him that she was without money. She testified that in fact she had about $500.00. But we conclude from her mode of living that this amount of money would not last her long and that she was practically without any means.

It was the contention of each of the parties at the trial that the other made nearly all of the advances culminating in the marriage. After reading the testimony we arrive at the conclusion that the amount of love-making made by each of the parties was about equal. The question of the sincerity of each one is another matter. There is no question but that defendant was in love with the plaintiff at all times. Even at the trial he testified that he had always been in love with the plaintiff; that even now he thinks "a good deal of her and always will."

Shortly after their last marriage they rented the house to which we have referred and defendant agreed to and did turn over to his wife the sum of $250.00 per month for living expenses, which amount included the monthly rental of $75.00. Defendant testified that it was agreed before their marriage that they should live on his salary of $350.00 per month and that the balance of his income should be saved for old age. Defendant further testified that about the 24th or 25th of September, plaintiff having reminded him that he had not given her a wedding present, he voluntarily gave her a bond in the sum of $500.00; that this was a temporary bond and was in his name; that she raised a question about its being in his name and wanted it in her name. He told her that when the permanent bond was made out he would have it made out in her name. Afterwards he found the bond in his dresser drawer and showed it to her, and she said she did not want it unless it was in her own name. So he voluntarily gave her a check in the sum of $500.00. When he had done this, she said, "I won't get the bond, then?" He replied, "Yes, I will give you the bond as soon as it is issued in your name." The uncontradicted testimony shows that he afterwards gave her the bond.

Plaintiff's version of this transaction was that defendant had given her a check for $200.00 shortly before their marriage; that he said to her that if she would return the $200.00 he would give her one for $500.00; that that would be considered a wedding present; that prior to this time she might have mentioned the fact that he had not given her a wedding present; that after he gave her the $500.00 check he asked her to give it back and he would buy her a bond. She complied and the bond was purchased, but it was in his name. She thought that the bond should be in her name as it was a present to her. She admitted that she got $1,000.00 out of transaction consisting of the check and the bond. She testified that she merely mentioned that the bond was not in her name; that this ended the matter and there was no fuss or trouble about it.

Defendant testified that one evening about the middle of October plaintiff called him and stated that she had some unpaid bills; that she was unable to live upon the allowance of $250.00 per month; that he protested and said that he thought that that sum ought to be sufficient; that he said that he was getting only $350.00 per month in salary; that she then told...