Ryan v. Ryan
| Decision Date | 29 May 1911 |
| Citation | 137 S.W. 1014,156 Mo.App. 655 |
| Parties | HENRIETTA E. RYAN, Respondent, v. LAWRENCE J. RYAN, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Randolph Circuit Court.--Hon. A. H. Waller, Judge.
Affirmed.
Eugene W. Nelson and Willard P. Cave for appellant.
The court erred in granting the decree of divorce, as the evidence shows that plaintiff is not the injured and innocent party. (a) A party seeking a divorce must, as in a court of equity, come into court with clean hands and must be both an injured and innocent party. Tarlotting v Tarlotting, 82 Mo.App. 201; Morrison v Morrison, 62 Mo.App. 299; Lawler v. Lawler, 76 Mo.App. 637. (b) Where both parties use harsh or questionable language to each other, plaintiff is not entitled to a divorce. Holschbach v. Holschbach, 134 Mo.App. 247; Wrangling due to lack of conciliatory temper in both parties is not an indignity. Griesedieck v. Griesedieck, 56 Mo.App. 94. (c) An indignity to be intolerable in the statutory sense must amount to a specie of mental cruelty. Holschbach v. Holschbach, 134 Mo.App. 257; Goodman v. Goodman, 80 Mo.App. 274. (d) In divorce proceedings an appellate court will examine the evidence for itself and draw its own conclusion therefrom not being bound by the finding of facts made by the trial judge. Tarlotting v. Tarlotting, 82 Mo.App. 200; Morris v Morris, 60 Mo.App. 86.
J. W. Hays and M. J. Lilly for respondent.
We find no occasion to disagree with counsel for defendant, in their citation of authorities to the effect that there must be an "injured and innocent party," and that, it is true that in divorce proceedings, an appellate court will examine the evidence itself and draw its own conclusion therefrom, not being bound by the finding of facts made by the trial judge, but when the testimony was oral and is conflicting on account of the superior advantages possessed by the trial judge for weighing the testimony and judging of its credibility, an appellate court will give much deference to his conclusion of fact. Tarlotting v. Tarlotting, 82 Mo.App. 200.
This is a suit for divorce. Plaintiff and defendant were married at New London, Missouri, in May, 1905, and they lived together as man and wife until May, 1910. The plaintiff in her petition alleges "that defendant wholly disregarding his duties as the husband of plaintiff has been guilty of such gross, vile, ugly, indecent and barbarous treatment toward this plaintiff as to render her condition intolerable in this, to-wit: That prior to the marriage of plaintiff and defendant herein, defendant was formerly married, and of such marriage there were born and are now living three children now of the ages of fifteen, thirteen and eight respectively; that the above named three children have been in the home and plaintiff has cared for them and endeavored to raise them as though they were her own children.
"That commencing within a year of their marriage this defendant has continuously and on the slightest provocation, and without any fault on the part of plaintiff whatever assaulted plaintiff, and such assaults as the years went by became so frequent and violent that plaintiff feared for her life, and that in addition to the various times that plaintiff has been assaulted by defendant the defendant has applied to plaintiff the most venomous and ugly epithets known and used by the meanest, lowest and most wicked men, such as 'God damned bitch,' 'God damned whore' and would use such language and apply the same to plaintiff in the presence of his children by a former marriage and their own child by their marriage; and that defendant would, and did on various occasions use such language toward this plaintiff in the presence and hearing of other people." Other similar charges are made against defendant.
The defendant in his answer denied all the allegations of said petition. The suit was begun in the Hannibal Court of Common Pleas and was taken by change of venue to the circuit court of Randolph county.
The court granted the prayer of plaintiff, decreed her absolute divorce from defendant, the care and custody of her infant child, two thousand dollars alimony in gross, fourteen dollars per month until January, 1911, for the support and maintenance of said minor child, after which time plaintiff was allowed ten dollars per month for support and maintenance of such child. Defendant appealed.
The plaintiff and defendant had never met before the day on which they were married. A short while before that time plaintiff, who was working in Buffalo, New York, inserted an advertisement in a newspaper in St. Louis asking for a position as pianist. It was this advertisement which led to a correspondence by letter between the parties which finally resulted in defendant sending money to plaintiff to defray her expenses to Hannibal where they met and drove to New London and were married.
The plaintiff was questioned while testifying as follows: "Did you have any property of your own at the time you married him?" She answered, She stated that she did not love him at any time. According to her testimony the defendant was a course, brutal man and that he beat her within five months after their marriage; that he called her a bitch, whore and chippy in the presence of their children and other persons; and that he abused her almost daily and taught his eldest child to abuse and curse her; and that during the whole time of their married life she endeavored to do her duty as his wife.
The testimony of other witnesses was to the effect that defendant did not treat plaintiff with respect at his own home while in the presence of visitors and on one occasion called her a "damn fool." On another occasion when plaintiff and a lady witness on a visit from Ohio had gone to church on a Sunday evening and did not return until about 10 o'clock, defendant had the door locked and after some delay unlocked it and let them in. Some words of dispute were used during which defendant abused plaintiff; that he put his feet on the center table and said he supposed they were out with other men.
A witness who lived within a few feet of the parties on one occasion heard a quarrel between them in which defendant called his wife a "God damn bitch;" that she did not see him hit her but heard her scream. The evidence of other witnesses went to show that defendant was rude and unkind to plaintiff; and that he applied to her abusive language and treated her with contempt. Plaintiff proved a good reputation; that she was a refined woman and that defendant's reputation for truth and veracity was bad.
The defendant's testimony went to show that his reputation for truth was good; and that his reputation for morality was...
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