Reynolds v. Reynolds

• Court: Missouri Supreme Court
• Writing for the Court: JAMES T. BLAIR, J.
• Citation: Reynolds v. Reynolds, 297 Mo. 447, 249 S.W. 407 (Mo. 1923)
• Decision Date: 05 March 1923
• Parties: MARGUERITE M. REYNOLDS v. JAMES G. REYNOLDS, Appellant

249 S.W. 407

297 Mo. 447

MARGUERITE M. REYNOLDS v. JAMES G. REYNOLDS, Appellant

Supreme Court of Missouri, First Division

March 5, 1923

Appeal from Cape Girardeau Court of Common Pleas. -- Hon. John A Snider, Judge.

Affirmed.

D. W Karraker and Spradling & Burrough for appellant.

(1) The court attempted to take into account, adjudicate and settle all questions of property rights, both present and inchoate between the parties, and in so doing it proceeded wholly without jurisdiction, and its judgment in that respect is void. Ecton v. Tomlinson, 278 Mo. 287; Davison v. Davison, 207 Mo. 707; Fisher v. Fisher, 207 S.W. 261; Aylor v. Aylor, 186 S.W. 1071. (2) There is nothing in the pleadings in this cause authorizing the court to enter a decree adjudicating the property rights of the parties, and such adjudication is beyond the scope of the pleadings. Ecton v. Tomlinson, 278 Mo. 282; Hasselbach v. Kleissle, 224 S.W. 75. The respondent carried the burden of making out her case by a preponderance of the evidence. The granting of divorces is against the interests of the State and of society, and the courts see to it that complainants sustain the charges by a clear preponderance of the evidence. Appellant submits that respondent has not established her case by a preponderance of the evidence, and for that reason the decree should have been denied. Mahn v. Mahn, 70 Mo.App. 337; Gruner v. Gruner, 183 Mo.App. 157, 172; Anderson v. Anderson, 2 A. L. R. 1617, 1620; 19 C. J. 131. (3) The respondent testified to the charges of cruelty and excesses and L. B. testified to the adultery. Neither corroborated the other. A divorce, together with a large amount of alimony, should not be allowed in a case of this character without some corroborative evidence. Maget v. Maget, 85 Mo.App. 6; Gedwell v. Gedwell, 184 Mo.App. 496; Wallace v. Wallace, 194 S.W. 523; Libbe v. Libbe, 157 Mo.App. 701; Scholl v. Scholl, 194 Mo.App. 559. (4) Respondent relies wholly on the testimony of L. B. for the purpose of establishing adultery. If she sustained the relation with appellant that respondent contends she did, then she would be a paramour of appellant, and the courts hold that the testimony of a paramour should be received with great caution. 19 C. J. 141; 9 Am. & Eng. Ency. Law, 762; Fawcett v. Fawcett, 61 N.Y.S. 108; Letts v. Letts, 82 A. 845. The appellant testified frankly and fully concerning all the charges made by respondent and his testimony was not refuted or impeached and should have more weight than that of a self-confessed adulteress. (5) The court permitted respondent, over the objection and exception of appellant, to testify to private communications between her and her husband when no one was present. This was error. McPheeters v. McPheeters, 227 S.W. 872; Revercomb v. Revercomb, 222 S.W. 889; Gruner v. Gruner, 183 Mo.App. 157, 171; Berlin v. Berlin, 52 Mo. 131, 152; Ayers v. Ayers, 28 Mo.App. 97; Gisel v. Gisel, 219 S.W. 664. (6) Respondent testified that she had never advised appellant that the alleged cruelty and excessive sexual relations were injurious to her health and endangered it, and for that reason all of her testimony relative to these matters should not have been admitted. Maget v. Maget, 85 Mo.App. 6; 9 Am. & Eng. Ency. Law 792; 19 C. J. 55; Shaw v. Shaw, 17 Conn. 189; Mayhew v. Mayhew, 61 Conn. 233; Moores v. Moores, 16 N. J. 275; Coles v. Coles, 113 S.W. 418. (7) The amount of alimony awarded respondent is excessive. The respondent did not contribute in the slightest degree, either in money or labor, or in sacrifice or thought, to the accumulation of the property of appellant. The appellant owned all of this property prior to his marriage with respondent. Vordick v. Vordick, 219 S.W. 591; Lemp v. Lemp, 249 Mo. 295, 330; Cummings v. Cummings, 15 N.W. 485; Necker v. Thredt, 113 N.W. 447.

Oliver & Oliver for respondent.

(1) The court had the right, under the decisions of this court, in fixing the alimony in gross, to fix a specific sum in money to be paid to the plaintiff, and to enter an order barring the wife from subsequently claiming dower in her husband's property. Arnold v. Arnold, 222 S.W. 1001; Aylor v. Aylor, 186 S.W. 1072. (2) (a) Should the court hold, however, that that portion of the decree barring dower was beyond the power of the trial court, the defendant cannot complain. It is to his advantage. The plaintiff is the one whose right is taken from her, but she is not complaining, and she alone has that right. The trial court attempted to render a full and complete settlement of all the domestic relations between these mismated parties. It was equitable and should be permitted to stand. Arnold v. Arnold, 222 S.W. 996, l. c. 1001. (b) There is one decision in this State (Ecton v. Tomlinson, 278 Mo. 282, which was a collateral attack upon a prior decree of divorce in which dower was barred) in which it is held that the order barring the dower was beyond the power of the court. Yet, in no instance that we have been able to find has the wife been permitted to recover dower where an order barring dower was made a part of the decree of divorce. It has always been held that she was estopped and barred by reason of the decree and her subsequent actions, and it must be so held. Ecton v. Tomlinson, 278 Mo. 282; Crenshaw v. Crenshaw, 276 Mo. 471. (c) In order, however, that there may be no question as to the subsequent rights of this respondent, and to the end that her position may be made clear, she now, here in this court, offers and promises upon the affirmance of the judgment in this case, rendered below, to at once execute a deed of quitclaim or such other instrument as may be required by this court, to the appellant herein, relinquishing and releasing all her claim and right to dower in the appellant's property. (3) This court has the unquestioned right to affirm or render such judgment as in its opinion should have been rendered by the trial court or to remand the case with directions. The decree was for the right party. The award of alimony was not excessive. There are no children. Under the law, upon the death of the defendant, plaintiff would take one-half of the estate. The husband is fourteen years older than his wife. The case should be affirmed. R.S. 1919, sec. 1514; Helm v. Albers, 244 Mo. 38, 51; State ex rel. Dawson v. St. Louis Court of Appeals, 99 Mo. 223; Joyes v. Cale, 124 Mo.App. 575. (4) While appellate courts are not absolutely bound by the findings of fact by trial courts in divorce cases, yet when there is any conflict in the testimony and the ascertainment of the true facts depends largely upon the demeanor of the witnesses on the stand and their credibility, the appellate courts will be largely guided by the findings of the trial court. Cherry v. Cherry, 258 Mo. 391, 403; Hoecker v. Hoecker, 222 S.W. 387; Torlotting v. Torlotting, 82 Mo.App. 192; Borth v. Borth, 168 Mo.App. 423; Long v. Long, 171 Mo.App. 202; Albree v. Albree, 175 Mo.App. 349; Milster v. Milster, 200 Mo.App. 603. (5) The plaintiff was a competent witness in her own behalf as to the excesses of the defendant and indignities rendered to her. She was the only party in the very nature of things who could testify to such acts and communications. Maget v. Maget, 85 Mo.App. 6; Schneikert v. Schneikert, 108 Mo.App. 477; Stone v. Stone, 134 Mo.App. 246. (6) The award of the alimony was not excessive nor unreasonable. Howard v. Howard, 188 Mo.App. 567; Gercke v. Gercke, 100 Mo. 241. It was well within the boundaries prescribed in approved cases. Viertel v. Viertel, 212 Mo. 562, 575; Glover v. Glover, 192 Mo.App. 648; Wright v. Wright, 192 Mo.App. 633; Griffith v. Griffith, 190 S.W. 1021.

OPINION

JAMES T. BLAIR, J.

-- On respondent's petition for divorce and alimony the trial court dissolved the marriage and gave judgment for $ 20,789.76 alimony in gross, and this appeal followed.

The marriage occurred in 1907, and the parties lived together until October 1, 1919. The petition charges, in great detail, cruelty endangering respondent's life, indignities, and adultery on the part of the husband in 1913 and 1919. The answer admits the truth of the charge of adultery in 1913 and the contracting of "a loathsome disease" from that connection, but pleads condonation of that offense, denies the other charge of adultery, and avers that appellant treated respondent with kindness and affection.

It is unnecessary to go into detail with respect to the evidence concerning the charges of indignities and cruelty. That evidence fills much of the record and centers about the charge of excessive sexual relations enforced by mental duress. With respect to this it is enough to say that the evidence was sharply conflicting. L. B. testified that in 1919 she was employed at the Reynolds home, and appellant on several occasions seized her and had intercourse with her. Her testimony was unequivocal and was not shaken on cross-examination. At a time near the last of these instances respondent's mother, a visitor in the household, chanced to see appellant as he held the girl and was endeavoring to induce her to submit to him. This provoked inquiries by respondent which resulted in exposure of the illicit relations. The deposition of this witness, who was of foreign descent, somewhat ignorant and unfamiliar with English and court proceedings, had been taken previously, by appellant. On her direct examination by appellant's counsel on that occasion she testified frankly as to her relations with appellant. Counsel then cross-examined his witness and secured the answer upon which he relies to impeach her. The answer chiefly relied upon is one made to a bifurcated question. She had already testified in detail to her relations with appellant, and had further testified that...