Rogers v. Rogers

• Decision Date: 05 July 1968
• Docket Number: No. 8721,8721
• Citation: 430 S.W.2d 305
• Parties: Leah Mae ROGERS, Plaintiff-Appellant, v. Elmer ROGERS, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 305

430 S.W.2d 305

Leah Mae ROGERS, Plaintiff-Appellant, v. Elmer ROGERS, Defendant-Respondent.

No. 8721.

Springfield Court of Appeals, Missouri.

July 5, 1968.

James E. Curry, Ava, for appellant.

O. J. Adams, Kingston, Quentin Haden, Ava, for respondent.

HOGAN, Presiding Judge.

Plaintiff, Leah Rogers, brought this action against her husband, Elmer Rogers, in the Circuit Court of Douglas County, seeking a divorce and the custody of the parties' four minor children. The defendant filed an answer and cross bill, praying for divorce and custody of the children. Both parties relied upon alleged indignities as grounds for divorce. The trial court has granted the defendant a divorce and awarded him custody of the children. The plaintiff appeals.

The parties--referred to in the record as Leah and Junior--were married July 8, 1956. They established a home on a farm near Hamilton, Missouri, became parents, and apparently lived together quite happily until Leah became interested in Zion's Order of the Sons of Levi.

Zion's Order of the Sons of Levi is a religious order, chartered as a not-for-profit corporation. Mr. Marl Kilgore, then president of the organization, testified at length concerning its purpose and method of operation. The order was founded in New Mexico but was later moved to Missouri. It operates a large farm, or 'ranch,' not far from Ava, Missouri, on which 94 people lived at trial time. Though the order has a religious cast ¹ it is 'non-denominational,' and 'people do not have to give up their religion or unite with our type of religion to become a member.' The order does have 'rules and regulations,' however, and, as Mr. Kilgore put it, 'The rule is: everybody must abide by them who lives there because we have to have order with a group of that size.' The organization is governed by an eight-man board of directors. Prospective members, if approved by the board, may join the order, or they may enter on a provisional basis for 13 months. The applicant must then join or leave. If he wishes to become a member, he must donate all his property to the order. All the present members have done so.

The members of the order lead a communal life, in the sense that the life of the individual is almost blended into that of the community. The order has a common treasury and a community storehouse. Having donated his property to the order, the individual member receives food, clothing and shelter for himself and his family. The members may work at one of several projects, a farming operation, a dairy and beef cattle operation, or an upholstery-making operation. Each operation is supervised by an individual person designated by the board of directors. Other members work at ordinary labor, sometimes in nearby communities, but no one receives any wages; there is no individual compensation for labor, and everything which is earned goes into the general treasury. Individual expenditures, except for emergencies, require approval of the board of directors. The order also observes rather strict dietary practices, although they do not force these restrictions on others.

Mr. Kilgore travels extensively in the course of his work. On one of these trips--the date is not shown--Mr. Kilgore stopped at the parties' home near Hamilton and stayed a short time. The reason for this first visit is somewhat obscure, but according to Junior, Mr. Kilgore pointedly inquired how many acres the defendant had and how much livestock he owned. Mr. Kilgore did not remember any such conversation, nor did the plaintiff. Mr. Kilgore made one other visit to the Rogers farm, again on a date not specified, and at some time in the course of events the plaintiff's family became members of Zion's Order and moved from Idaho to the order's ranch near Ava.

Thereafter the plaintiff began to make regular trips to the ranch, and as time went on her visits became more frequent and protracted. In September or October 1960, the plaintiff, accompanied by her husband, made a weekend trip to see the plaintiff's family. Later, the plaintiff's sister asked her to be a matron of honor at a wedding, and the plaintiff spent about two weeks at the ranch. On each of these two occasions, the plaintiff brought her two elder children. In April 1961, the plaintiff's mother, who had been in a hospital in Idaho, was released and came to the ranch to join plaintiff's father. Plaintiff joined her there and remained three or four weeks. In February 1962, plaintiff was expecting her third child. Depending upon whose version of the facts one accepts, the plaintiff went to the ranch because her husband suggested it, or on her own initiative because she wanted to be near her mother when the child was born. Whatever may have been her reason for going, the plaintiff stayed on this occasion. At trial time, she still lived at the ranch with her children.

From this point, the evidence is in conflict. Leah's evidence was that when Junior brought her to the ranch in February 1962, he stayed only a short time and left, without requesting or even mentioning that she return to their home at Hamilton. Junior testified that Leah was baptized into the order and had made up her mind to move to the ranch before she left in 1962, and that by the time she left the parties had 'pretty well decided to break up.' Junior went back to Hamilton, but in April he sold his farm and his livestock and went to live at the ranch. Plaintiff's evidence was that defendant sold their farm and their livestock without her knowledge. The substance of her testimony was that it had been the defendant's idea to change their residence, and that he had voluntarily undertaken to join the order without persuasion by her. Defendant, on the other hand, said that while his wife wanted to keep their family together, 'she wanted me there where she could serve the Lord.' His explanation for leaving Hamilton and moving to the ranch was that 'she was (there) and she was going to stay (there) so I had to--I sold out and came down (there). * * * I wanted to stay with her that much.'

In any event, defendant attempted to acclimate himself to Zion's Order of the Sons of Levi, but was unsuccessful in doing so. He donated the proceeds from the sale of his property to the order and lived at the ranch for three and one-half years. For Junior, the order's way of life was disagreeable to the point that it finally became intolerable. He resented the authoritarian nature of the organization; the individual member, as he put it, 'didn't have no sayso.' '* * * You are told every move to make. You can't do anything without their permission.' Defendant also objected to the health practices in which the order believed. The president of the order is a naturopathic physical culturist who worked a number of years as a chiropractor, and the record indicates that the membership is encouraged to accept his medical ministration in preference to that of orthodox physicians. Defendant's evidence was that 'when our little kids (got) sick, they had to take physical culture as a means of doctoring. * * * If they develop measles or colds or anything, they fast, get nothing to eat for several days.' The health practices of the order also caused Junior to become suspicious of the president's son, Nathan, who gave some sort of manipulative 'treatments,' though he was not a licensed practitioner of any of the healing arts. On one occasion, Leah suggested that Junior 'go and get Nathan to give you a trestment on your back.' Junior asked if his wife had 'been in there' (Nathan's 'treatment room') before, and she answered that she had. It seemed to Junior that Leah and Nathan were 'always together,' and on several occasions 'I'd come up the stairs * * * and catch them coming out of a little side room there where she had had herself put back together, I guess.' Not unnaturally, this had caused Junior to suspect his wife of infidelity, though there is no proof of any actual infidelity, and none is claimed here. The defendant also found the order's dietary practices objectionable. The order is vegetarian, and as Junior put it, 'You may get up and have cold rutabagas for breakfast or carrots or what have you, and you may not have anything if you don't like it. The kids don't, either.'

During all the time he was associated with the order, the defendant worked, usually in the timber cutting wood. In the spring, Junior and other members of the order were sent out to work for people who lived near the ranch. They were paid $1.25 an hour for their labor, but none of them ever received any of the money; it all went to the organization. Finally there came a time, in August 1965, when '* * * they was separating the good from the bad, as I understood it. Some of them went to mental institutions, some went to old folks' homes, and I went home.' By this time, the defendant was very thin and 'in a nervous condition.' When he got home, that is, back to Hamilton, he consulted a physician and found he had contracted tularemia 'and some other things.' For two or three months Junior took 'medicine and shots,' and finally was able to return to work at St. Joseph. In September 1965, the plaintiff filed her petition for divorce.

The plaintiff, meticulously comparing the testimony with the allegations of the cross bill, claims that the defendant did not prove any grounds for divorce and was not entitled to affirmative relief. We cannot agree. It may be that the defendant's proof does not follow the allegations of his cross bill, which was rather extravagantly drawn, but that is not determinative. The defendant's evidence was received without any objection that it was not within the pleaded issues. With some limitations not material here, the rule is that when issues not specifically pleaded are tried by express or implied consent, they are treated as if they had been expressly pleaded. Rule 55.54, V.A.M.R.; § 509.500, RSMo. (1959); Domijan v. Harp, Mo., 340 S.W.2d 728, 733(6)...