Redford v. Redford
| Decision Date | 19 February 1912 |
| Parties | ARCHELAUS B. REDFORD, Respondent, v. CYNTHIA R. REDFORD, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Vernon Circuit Court.--Hon. B. J. Thurman, Judge.
AFFIRMED.
Judgment affirmed.
Langsdale & Howell, Lee B. Ewing and E. R. Morrison for appellant.
(1) The plaintiff is not an injured party. Dwyer v. Dwyer, 16 Mo.App. 422; Scott v. Scott, 44 Mo.App. 600; Grant v. Grant, 36 N.J.Eq. 502; Davis v Davis, 60 Mo.App. 545; Droege v. Droege, 55 Mo.App. 481; Hoffman v. Hoffman, 43 Mo. 550; Taylor v. Taylor, 28 N.J.Eq. 207; Moores v Moores, 1 C. E. Gr. 275; Rose v. Rose, 50 Mich 92. (2) In any event the statutory period had not elapsed. Doyle v. Doyle, 26 Mo. 545; Marsh v. Marsh, 1 McCarter (N. J.) 315; Sykes v. Halstead, 1 Sandf. 483; 1 Bishop on Marriage and Divorce, sec. 1757. (3) The judgment was for the wrong party.
Scott & Bowker, Jas. D. Lindsay, W. E. Owen and Parks & Son for respondent.
(1) The conditions which justify a wife's abandonment of her husband are those only which would support a decree of divorce in her favor where she is plaintiff. Droege v. Droege, 52 Mo.App. 91; Converse v. Converse, 60 S.E. 627; Golden v. Golden, 36 Pa. 648. (2) To justify the granting of a divorce on the ground of indignities, such indignities should be sufficient to constitute a species of cruelty at least to the mind. Weller v. Weller, 154 Mo.App. 6. (3) Where a wife willfully deserts her husband and thereafter brings a suit against him, and he has in no way procured, consented to, or connived at the separation, he is under no legal obligation to solicit her return, and her persistence in such desertion continuously for the statutory period, gives the husband the right to a divorce on such statutory grounds. Hitchcock v. Hitchcock, 15 App. D. C. 81, N. J. Ch. 1901; Kaster v. Kaster, 43 Mo.App. 115; Deschodt v. Deschodt, 59 Mo.App. 102; Hamberg v. Hamberg, 147 Mo.App. 591; Seeds v. Seeds, 139 Iowa 77. (4) If an action for divorce is instituted and prosecuted in good faith by one spouse against the other, the time during which the action is pending to the time of final adjudication is not regarded as an obstinate or wilful desertion, but in order to have this effect the action must be brought in good faith. And it cannot be contended that a wife who intends to desert her husband can, with that intent, leave his residence and live separate from him, and at the same time destroy the effect of the desertion by immediately beginning an unfounded action for divorce against him. In the absence of good faith, it is clear that the beginning of the action cannot transform a causeless abandonment of the marital domicile into an innocent absence. Kusel v. Kusel, 147 Cal. 52, 81 P. 297; 1 Bishop on Marriage & Divorce (6 Ed.), 802; Doyle v. Doyle, 26 Mo. 545; Von Bernuth v. Von Bernuth, 76 N.J.Eq. 487; Wagner v. Wagner (Minn.), 80 N.W. 360; Easter v. Easter, 75 N.H. 270; 1 Nelson on Divorce and Separation, sec. 93; Palmer v. Palmer, 18 So. 720.
This is a suit for divorce which was begun in the Henry County Circuit Court on the 30th day of November, 1910. The ground alleged is abandonment for one whole year from the 1st day of November, 1909. On application of defendant a change of venue was awarded to Vernon county.
The defendant filed a second amended answer which after admitting the marriage with plaintiff made a general denial of the other allegations of the petition, and for further answer alleged substantially that; she faithfully demeaned herself as the wife of plaintiff in every respect; but that plaintiff during the whole course of the relation was guilty of such barbarous treatment as to endanger her life in that, at various times and continuously during said time nagged at her and quarreled with her about petty matters; that he frequently told her she was no good; and that he derided her about her blood relations, among others, her brothers; that he often told her to go back to Kansas City where she had resided before her marriage to him; that without provocation he told her she would never get any of his money; that plaintiff drank alcoholic liquors continuously and several times became intoxicated; that while in that condition on one occasion while with defendant in a public eating house plaintiff danced and sang to the great embarrassment of defendant and used abusive language toward her in the presence of others; and that during his periods of intoxication plaintiff would threaten her with physical violence and that she was afraid that he would carry out his threats.
Defendant alleges that for the reasons above stated she left plaintiff on or about the first day of November, 1909, and returned to Kansas City; that on the 2d day of November, 1909, she filed a petition in the circuit court of Jackson county, praying for a divorce from the plaintiff; that on the 10th day of January, 1910, the plaintiff herein duly filed his answer to her said petition; that on the 21st day of March, 1910, said matter came up for a hearing, before the Honorable James H. Slover, one of the judges of the court, and her case was dismissed.
The plaintiff filed a reply to the defendant's amended answer in which he admits that plaintiff instituted her suit of divorce in the Jackson County Circuit Court and that it was heard by the court and dismissed, and alleges that upon the hearing of the charges contained in defendant's petition they were found to be untrue and dismissed her bill for that reason. All the other allegations of the answer he denied.
After hearing the evidence the court granted plaintiff a decree of divorce from which defendant appealed. The plaintiff at the time of his marriage to defendant was 80 years old; had been married twice before, both of his wives being dead. Defendant was 48 years old; had been married once before and had obtained a divorce from her husband. At the date of her marriage she had been living for eight years in Kansas City, Missouri, engaged in keeping a rooming house. She had known plaintiff for a long time and lived a near neighbor to him while she was married to her former husband. She had property of her own estimated to be of the value of $ 5,000 or $ 6,000. She had children, all grown. Her immediate relatives, her brothers, lived in Henry county where her real property was situated.
It was shown that plaintiff habitually used liquor and occasionally got drunk; that he was uneducated and without personal attraction. That defendant and her brother examined the records of Henry county to learn how much property plaintiff possessed; and a witness, a Mrs. Wright, testified that the day before the marriage defendant told her that she was going to marry a man worth $ 75,000. A while after their marriage the parties lived in Kansas City, during which time plaintiff at one time got drunk. In July, 1909, they moved to plaintiff's farm in Henry county and there lived together until defendant left plaintiff in November of that year. There is no doubt but what the parties sometimes quarreled and that they were wholly unsuited for one another. Mrs. Wright testified, that after defendant had failed in her divorce, she told her that, "she was sorry she didn't take the old gentleman to Kansas City to her rooming house and get him full and start a quarrel, and then call in the officers and she would have had him."
A Mrs Bain testified that defendant was intoxicated on the 19th of November, 1910, and said: "Didn't I tell you I could get a man whenever I wanted one, I have got a nice one down stairs." Defendant admitted that when she left plaintiff in November, 1909, it was her purpose of not returning, but to get a divorce, although she led plaintiff to believe that she would return. Defendant testified and in the main affirmed all the statements in her answer. She denied...
To continue reading
Request your trial