Ratcliff v. Ratcliff

• Decision Date: 06 December 1928
• Docket Number: No. 15782.,15782.
• Citation: 288 S.W. 794
• Parties: RATCLIFF v. RATCLIFF.
• Court: Missouri Court of Appeals

288 S.W. 794

RATCLIFF v. RATCLIFF.

No. 15782.

Kansas City Court of Appeals. Missouri.

December 6, 1928.

Appeal from Circuit Court, Buchanan County; Sam Wilcox, Judge.

Suit for divorce by Nellie Ratcliff against Crawford Ratcliff. Decree for plaintiff, and defendant appeals. Affirmed.

Tibbels & Bridgeman, of Mound City, for appellant.

Harry M. Dungan, of Oregon, Mo., and Bastin & McNeely, of St. Joseph, for respondent.

ARNOLD, J.

This is an action for divorce, in which plaintiff by her original petition seeks to have adjudicated and determined the interests of the parties litigant to certain real estate and personal property. The suit was instituted in Holt county, Mo., but a change of venue was taken by each of the parties, and the cause finally was tried in division No. 1 of the Buchanan county circuit court at St. Joseph.

The facts developed are that the parties were married in Holt county on March 26, 1010. No children were born of the marriage. It appears that plaintiff is about 14 years the senior of defendant. Prior to the said marriage, plaintiff had lived on a farm in Holt county with her widowed mother. Defendant, a single man, then about 19 years of age, came to said county from the state of Virginia and entered the employ of plaintiff's mother as a farm hand. Both plaintiff and defendant had lived with plaintiff's mother on the farm for a period of about 18 years, when plaintiff's mother died. After the death of plaintiff's mother, the two continued to live on the farm for a year or two previous to their marriage and for a time thereafter. The evidence shows that at the time of the said marriage plaintiff was the owner of two tracts of land, one consisting of 80 acres and the other of 105 acres, both of which were incumbered. At this time defendant possessed a little property, probably a team or two and a few farm implements, but no real estate. After their marriage, the parties prospered, and within a few years had accumulated considerable personal property, and had paid off the incumbrances on plaintiff's lands.

It appears that in 1917 the parties acquired by purchase or trade a tract of 200 acres from one Fred Fleenor. Plaintiff's 80-acre tract, valued at $160 per acre, was exchanged for the 200-acre tract, which was also valued at $160 per acre; the difference being paid in cash. In order to raise the amount, a loan "of $6,700 was placed on plaintiff's 105-acre tract and a loan of $15,000 on the 200-acre farm obtained in the deal. The deed for the 200 acres from Fleenor was made to defendant and plaintiff as husband and wife, creating thereby an estate in the entirety in this tract. It is plaintiff's contention that defendant procured this deed to be so made without her knowledge or consent and for the purpose of defrauding her, and that the arrangement between her and defendant was that plaintiff was to have an interest in the 200 acres in excess of defendant's interest, in the amount of $12,800 which was the value of the 80-acre tract which went into the deal as part payment. After the purchase of the 200-acre tract, the parties moved from the 105-acre tract where they had been living, to the 200-acre farm and continued to reside thereon until their separation, at which time the indebtedness of $6,700 on the 105-acre tract had been paid. At the time of the separation, there were on the farm some 45 head of cattle and about 100 head of hogs, in which plaintiff claims she and defendant had an equal interest.

Some time in the fall of 1923, one Fred Wallace, who had been employed to gather corn, moved, with Jennie his wife, into a small house on the farm near the dwelling occupied by plaintiff and defendant. Wallace and his wife continued to live there until some time in December, when Fred Wallace left, and Jennie moved into the house occupied by plaintiff and defendant. Jennie remained a short time, and then went to Oklahoma, where she stayed for about two weeks, at which time plaintiff wrote her and sent money for her return to Holt county. It appears the defendant cannot write. Jennie returned in January, 1924, and went to the home of plaintiff and defendant, where she remained until the latter part of June that year, when she finally left. Plaintiff's testimony shows that adulterous relations between Jennie Wallace and defendant began in February, 1924, and continued daily until the latter part of June following. The house in which the parties resided consisted of four rooms, viz. two bedrooms, a kitchen, and another room, all being on the first floor. One bedroom at the southeast corner was occupied by plaintiff and defendant and the one at the southwest corner by Jennie Wallace; the two rooms having a communicating door. The kitchen was the northeast room, and, in going from the kitchen into the west bedroom, it was necessary to pass through the east bedroom.

Plaintiff testified that, when she would arise in the morning to build the tires and prepare breakfast, defendant would get out of his bed and go into the room occupied by Jennie and would get into bed with her; that she saw him do this from the latter part of February until the latter part of June, when plaintiff left home. It is in evidence that, when defendant went into the bedroom of Jennie Wallace, the door between the two rooms was always left open; that plaintiff would continue the preparation of breakfast, and when the meal was ready she would go into Jennie's bedroom and call her and defendant to breakfast. Plaintiff testified she remonstrated with defendant on his relations with Jennie and also had some mutual friends speak to him about it; that defendant became offended thereat and said she would only "make things worse." Considerable trouble developed between the parties over the woman, which resulted in plaintiff leaving her home and going with some relatives who had come to visit them, thus leaving defendant and Jennie Wallace together in the home. However, Jennie remained only a day or so, when she left. It appears plaintiff remained away from her home until the latter part of August, 1924, when she returned and continued to live and cohabit with defendant as his wife until January 15, 1925, when she again left and thereafter instituted this suit.

The petition alleges adultery by defendant after his marriage with plaintiff, and that he has offered plaintiff such indignities as to render her condition intolerable in this, to wit:

"That he has neglected the plaintiff, and for a long period of time devotedly paid attention to one Jennie Wallace, who, notwithstanding plaintiff's objections and protests, defendant kept in her home, where plaintiff was compelled to witness endearments outrageous to her position as wife of defendant; that defendant has, particularly since his attentions to the said Jennie Wallace began, frequently gone away from home, leaving plaintiff sick and almost helpless, with no provisions for fire or other comforts, and plaintiff has been compelled to suffer alone and wait upon herself as best she could; that the defendant is quarrelsome, fault finding, and abusive to plaintiff, and has by his treatment of plaintiff made her condition unbearable and intolerable."

The petition then proceeds to plead the history of the real estate in question as above detailed and the interests of the parties therein. The prayer asks for divorce, and that the court ascertain and determine the value of the 80 acres of land in excess of the amount contributed by defendant toward the purchase of the 200-acre farm, and award plaintiff such excess and one-half the personal property. The record discloses that in the original petition the prayer did not include a demand for alimony:but that, after the testimony was all in, the court permitted plaintiff to amend her prayer by interlineation, so as to include therein a request for alimony. The ruling of the court in allowing such amendment was vigorously opposed at the time by defendant, and is the basis of a charge of error on this appeal.

The answer admits the marriage, as alleged in the petition, that plaintiff and defendant had lived together as husband and wife until January 15, 1925,...