Roberts v. Roberts

• Decision Date: 02 February 1970
• Docket Number: No. 25235,25235
• Parties: Jasper H. ROBERTS, Respondent, v. Ruth E. ROBERTS, Appellant.
• Court: Missouri Court of Appeals

Page 469

450 S.W.2d 469

Jasper H. ROBERTS, Respondent, v. Ruth E. ROBERTS, Appellant.

No. 25235.

Kansas City Court of Appeals, Missouri.

Feb. 2, 1970.

Richard W. Mason, St. Joseph, for appellant.

Newhart & Zahnd, Savannah, for respondent.

HOWARD, Judge.

This is an appeal from the action of the circuit court in granting a divorce to the husband on his petition alleging indignities. The wife has duly appealed to this court contending that the husband's petition failed to state a cause of action and that the evidence adduced is insufficient to show that the husband is the innocent and injured party.

This couple had their first date on Saturday, July 27, 1968. On the following Saturday, August 3, 1968, they had their second date and on the following Tuesday, August 6, 1968, they were married in Nebraska to avoid the Missouri waiting period. They occupied the same bed on Tuesday, Wednesday and Thursday nights. The husband testified that on Friday night he went to bed at 9:00 o'clock and the wife did not follow. At 9:30, he got up and asked the wife if she was not coming to bed. She replied 'I aint done a thing around here right.' The husband went back to bed and when he woke up early the next morning the light was on and the wife was gone. It developed that the wife had gone to the home of her married daughter. Plaintiff talked to her on the telephone that day (Saturday, August 10, 1968) and told her he thought maybe she had been kidnapped and she replied 'Yes, I was kidnapped, you run me off.' It is not exactly clear from the husband's testimony whether this conversation with the wife occurred before or after he talked with a lawyer. In any event, he did consult his lawyer on Saturday, August 10, 1968. On Sunday, August 11, the husband took the wife's clothes to her at the home of her daughter, and on Tuesday, August 13, the husband's divorce suit was filed. This was exactly one week after the date of the marriage.

During this brief marriage, the husband bought some paint and the wife painted the kitchen and was proceeding to clean up the house in which the husband had lived as a bachelor for approximately ten years. She testified that it needed painting and a good cleaning. In this process, she moved a rug and apparently did some damage thereto in the moving. The husband says that he had told her not to move the rug. Further, the husband testified that in the process of painting and cleaning the wife neglected a bushel of sweet corn which he had in the sink and which consequently soured.

This is the sum and substance of the husband's evidence as to what transpired during the marriage. The wife's testimony adds very little to this picture because she was not permitted to testify as to communications between herself and her husband. Such proffered evidence was excluded on the husband's objection that it constituted privileged communications. However, the husband's attorney, on cross-examination of the wife, did bring out the following: 'Q. Now, he didn't chase you off from the house that night and threaten you, did he? A. Yes, he did. Q. Was there any loud talking? A. Oh, I wouldn't say it got real loud, no. * * * Q. Are you trying to tell this Court this man laid a hand on you? A. No, I'm not. He just told me to get out, I was trying to take over his home, so I got out.' The wife further testified that she had a conversation with her husband about midnight Friday evening, and as a consequence thereof, called her daughter to come and get her. When she left the home, she was wearing pajamas and a housecoat. She waited on the porch about half an hour for her daughter to arrive.

During the pendency of the divorce suit, the parties talked to each other on several occasions. The wife testified that she urged a reconciliation and asked her husband to consult a marriage counselor in connection therewith. The husband denied that there was any discussion of reconciliation but when pressed as to his wife's urging that a marriage counselor be consulted, he responded 'Oh, she brought that up.' The husband testified that he never called his wife after the separation but that she called him.

On the basis of the foregoing evidence, the wife contends on this appeal that the evidence is entirely insufficient to support the decree or to support the indignities alleged in the petition which she claims are insufficient to state a cause of action for divorce. The petition alleges that the conduct of the wife was such 'as to render Plaintiff's life with Defendant, as her husband, intolerable in the following instances: A. Plaintiff and Defendant are socially incompatible; B. Defendant left home of Plaintiff and Defendant of her own free will and without provocation, declaring that she would demand one-half of all of Plaintiff's assets.' We do not know what the petition intended to convey when it alleged that the parties were 'socially incompatible' but we are reasonably certain that any meaning it might convey to reasonable people could not constitute a ground for divorce under the Missouri statute. The evidence fails to show any attempt on the part of the wife to secure one-half of plaintiff's assets except for an affirmative answer of the husband to a leading question asked by his counsel as follows: 'Did she ever make any statement to you regarding obtaining one-half of your property?' The evidence does not reveal what these statements were. We are therefore left with the allegation that defendant left the home of the marriage of her own free will and without provocation and such evidence as may support that allegation.

Section 452.010 RSMo 1959, V.A.M.S., authorizes the granting of a decree of divorce where one spouse 'shall offer such indignities to the other as shall render his or her condition intolerable.' Since the early case of Hooper v. Hooper, 19 Mo. 355, our courts have uniformly held that this statutory provision is not capable of precise definition but that each case must depend upon its own circumstances; that indignities must amount to a species of mental or physical cruelty and that they must have the effect of rendering the other spouse's condition intolerable. This case points out that given facts might in one instance render an individual's condition intolerable; whereas, in other instances and under a different total circumstantial picture and involving different individuals, those facts might not render the condition intolerable. See also Garton v. Garton, Mo.App., 246 S.W.2d 832; Simmons v. Simmons, Mo.App., 280 S.W.2d 877; Price v. Price, Mo.App., 281 S.W.2d 307; Clark v. Clark, Mo.App., 306 S.W.2d 641; Oliver v. Oliver, Mo.App., 325 S.W.2d 33. It has likewise been repeatedly held that isolated and insignificant incidents which do not amount to a species of mental cruelty cannot rise to the stature of such indignities as will be a ground for divorce. A single incident is normally not sufficient to render one's condition intolerable but a course of conduct is contemplated as being necessary to reach this result and each case must be considered on its own circumstances. See Clark v. Clark, Mo.App., 306 S.W.2d 641; O'Leary v. O'Leary, Mo.App., 385 S.W.2d 346; Garton v. Garton, Mo.App., 246 S.W.2d 832.

In the case at bar, we are in fact presented with a single incident and that is the wife's action in leaving the home. The husband in his testimony expressly denied any other complaints. In this court, the husband seeks to justify the granting of a divorce to him on the basis of this one incident alone in reliance on the cases of Smiley v. Smiley, Mo.App., 207 S.W.2d 862, and Markham v. Markham, Mo.App., 429 S.W.2d 320. We do not believe that these cases are in fact authority for this position. The Smiley case involved a collateral attack upon a default divorce decree. It appeared that the wife had secured a decree of separate maintenance in St. Louis and thereafter had removed to the State of Oklahoma. The husband then instituted divorce proceedings in Scott County, Missouri, and had service by publication and his decree was rendered by default. The petition filed in Scott County alleged desertion but the decree was granted on the grounds of indignities. The wife did not learn of the decree until after the expiration of the term in which it was granted and in the collateral attack on this decree, no showing was made as to what evidence was heard by the Scott County judge before the decree was granted. The opinion points out that even though the petition alleged desertion, it was possible that there might have been evidence of such circumstances presented to the Scott County court as would justify and authorize a finding that the desertion did, in fact, render the husband's condition intolerable and that therefore the court in the Smiley case could not say as a matter of law that...