Richardson v. Richardson

Decision Date01 April 1975
Docket NumberNo. 35960,35960
Citation524 S.W.2d 149
PartiesElizabeth Ellen RICHARDSON, Plaintiff-Respondent, v. William Dorsey RICHARDSON, Defendant-Appellant. . Louis District, Division Three
CourtMissouri Court of Appeals

Anderson, Wollrab & Wilson, Barry A. Wilson, St. Louis, for defendant-appellant.

Bartley, Goffstein, Bollato & Lange, Gary H. Lange, Clayton, for plaintiff-respondent.

McMILLIA, Judge.

Defendant appeal from a judgment of a decree of divorce entered by the Circuit Court of St. Charles County, Missouri, granting plaintiff a divorce, custody of their two minor children, and one dollar ($1.00) a year as and for alimony, §§ 452.010, 452.070 and 452.120, RSMo 1969, V.A.M.S.

Since defendant questions the sufficiency of the evidence to show that plaintiff was the innocent and injured party, we set out the evidence keeping in mind that in a non-jury court-tried case our review is upon both the law and the evidence. Rule 73.01(d), V.A.M.R. While the court is not bound by the trial court's findings and can make its own, yet the judgment should be set aside only if clearly erroneous, Harrison v. Harrison, 339 S.W.2d 509, 514 (Mo.App.1960); Rule 73.01(d), and should be affirmed if sustainable on any theory, In re M_ _K_ _, 493 S.W.2d 686, 688 (Mo.App.1973). Consideration is given to the trial court's ability to judge the credibility of the witnesses, Rule 73.01(d). Where there is conflicting testimony, deference is given to the trial court's conclusions, Nutz v. Shepherd, 490 S.W.2d 366, 369 (Mo.App.1973), and where no specific findings are made, all fact issues are deemed to have been found in accordance with the results reached, Rule 73.01(b).

On December 13, 1973, plaintiff, appearing with counsel, testified that the defendant had failed to support her and that defendant had physically and verbally abused her on numerous occasions. Although neither defendant nor defendant's counsel appeared at the 9:00 A.M. divorce hearing, defendant allegedly called to inform the court of his anticipated tardiness. When he arrived at the court at 9:25 A.M., the divorce hearing was concluded.

The court found that plaintiff was the innocent and injured party and ordered that the divorce be granted. Plaintiff was awarded custody of the two children, allowed $10 per week per child as support, $1 per year as alimony and attorney's fees of $300 were taxed against defendant. The court stated that the defendant failed to appear but the divorce was not a default.

On January 14, 1974, defendant filed a motion to set aside the judgment, a motion for a new trial, and a request for a change of venue. All of the motions were denied and on January 22, 1974, defendant filed notice of this appeal.

Defendant claims error in the trial court's findings that the plaintiff was the innocent and injured party. He also contends that the granting of the ex parte divorce under the circumstances of this case was erroneous. Finally, defendant contends that the prior court erred in awarding defendant's entire official income as alimony and in allowing the hospital records into evidence at the pendente lite hearing.

Since the new Missouri divorce law became effective on January 1, 1974, that law is not applicable to the present case because the divorce decree, the final judgment in this case, was issued on December 13, 1973.

A thorough examination of all of the contentions of the defendant reveals no grounds for reversal of the trial court's decision and, therefore, the decision of the trial court is affirmed.

Defendant's first major group of contentions might be effectively classified as relating to the burden of proof; that is, the party seeking a divorce must prove that she is an injured and innocent party, C v. C, 474 S.W.2d 41 (Mo.App.1971). He contends that the plaintiff failed to prove either injury or innocence.

To establish injury, plaintiff must prove some statutory grounds provided in § 452.010, RSMo 1969, V.A.M.S. As suggested by the defendant non-support by the husband is not grounds for divorce, Hess v. Hess, 232 Mo.App. 825, 113 S.W.2d 139 (1938). On the other hand, while non-support alone is not grounds for divorce, non-support plus other indignities may be a sufficient basis for a decree of divorce, Lowe v. Lowe, 229 S.W.2d 7 (Mo.App.1950). In Klamberg v. Klamberg, 428 S.W.2d 889 (Mo.App.1968), the court found non-support plus the general 'sulkiness' of the husband to be sufficient grounds. In Markham v. Markham, 429 S.W.2d 320 (Mo.App.1968), the court found that the non-support by the husband, when funds were available, amounted to a species of mental cruelty creating an intolerable condition justifying divorce.

In the present case, the plaintiff claims more than non-support. She testified that on numerous occasions defendant physically and verbally abused her. These indignities coupled with the allegation of non-support could reasonably be found by the court to be sufficient to warrant divorce. The substantiality of the indignities are to be determined in light of the particular circumstances of each case, Rogers v. Rogers, 430 S.W.2d 305 (Mo.App.1968); Schwarz v. Schwarz, 427 S.W.2d 734 (Mo.App.1968); Reeves v. Reeves, 399 S.W.2d 641 (Mo.App.1966) and Missouri Family Law Binder (1970) 1220. This court, under the circumstances herein, cannot say that verbal and physical abuse coupled with non-support by the husband was not substantial enough to warrant divorce.

Having effectively established injury, the plaintiff, nonetheless, is not relieved of her burden to also establish her innocence. But innocence, in this context, does not mean freedom from all fault, but simply that the party seeking a divorce show that she has committed no offense which is a ground for divorce, J v. K, 419 S.W.2d 461 (Mo.App.1967); C v. C, 474 S.W.2d 41 (Mo.App.1971) and Schwarz v. Schwarz, supra. Defendant asserts that his wife has committed an offense prohibited by the statute by deserting him. 'Desertion' is defined under the statute as being absent without a reasonable cause for a year, § 452.010, RSMo 1969, V.A.M.S. In the present case, arguably there was reasonable cause for plaintiff's departure and more importantly, plaintiff was not absent for a period of one year. Defendant has, therefore, failed to demonstrate any action by the plaintiff amounting...

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