Scott v. Scott

• Citation: 192 S.W.2d 668,239 Mo.App. 953
• Parties: Lilburn A. Scott, Respondent, v. Mary Ellen Scott, Appellant
• Decision Date: 14 January 1946
• Court: Kansas Court of Appeals

192 S.W.2d 668

239 Mo.App. 953

Lilburn A. Scott, Respondent, v. Mary Ellen Scott, Appellant

Court of Appeals of Missouri, Kansas City

January 14, 1946

Appeal from Jackson County Circuit Court; Hon. Samuel A. Dew, Judge.

Affirmed.

Marion D. Waltner, and Clarence C. Chilcott for appellant.

(1) The court erred and abused its discretion in not dismissing respondent's petition because of the refusal of respondent to answer questions propounded to him upon the taking of his deposition. Ex parte Alexander, 163 Mo.App 615, 147 S.W. 521, l. c. 525-526; Bennett v Strodtman, 42 S.W.2d 43, l. c. 45; Dustin v Farrelly, 81 Mo.App. 281, l. c. 285; Sec. 1849, R. S. Mo., 1939; Chapman v. Chapman, 269 Mo. l. c. 668, 192 S.W. 448; Arnold v. Arnold, 222 S.W. 996, l. c. 998; Bethel v. Bethel, 181 Mo.App. 601, 164 S.W. 682, l. c. 683; Kuhl v. Kuhl, 160 Mo.App. 363, 140 S.W. 949; Ex parte McKee, 18 Mo. 599; (2) The evidence in this case was insufficient to support a decree of divorce for the respondent and the court erred in granting respondent a decree: Because the alleged facts testified to by respondent and his witnesses were so contrary to ordinary human conduct, experience and behavior as to be unbelievable. Because the evidence of the respondent is so vague, uncertain, inconsistent, contradictory, inherently infirm and contains so many discrepancies as practically to defy analysis and is too unsubstantial and incredible to form the basis for a decree of divorce. Because the alleged confession of appellant to witness Billie Vaughn was of itself insufficient to support a decree of divorce in the face of appellant's denials and her disinterested and unimpeached witness and the testimony of Billie Vaughn's husband, Walter Vaughn was so vague, uncertain, indefinite, incredible, inconsistent, contradictory, unworthy of belief and impeached as to constitute no corroboration thereof. Boehme v. Boehme, 72 S.W.2d 115, l. c. 116, 118; Howard v. Howard, 274 S.W. 530, l. c. 531; Ellebrecht v. Ellebrecht, 243 S.W. 209, l. c. 211; 17 Am. Juris., Sec. 396, pp. 343-344; 17 Am. Juris., Sec. 385, pp. 337-338, Sec. 393, p. 342; Marshall v. Marshall, 3 F. 2d. 344, l. c. 345-346; Meldrum v. Meldrum, 242 N.Y.S. 45, 137 Misc. 364; 19 C. J. 141; 19 C. J. 138; 17 Am. Juris., Sec. 371, pp. 332-333; Evans v. Evans, (Okla.) 252 P. 837; Letts v. Letts, (N. J. Eq.) 82 A. 845; Sargent v. Sargent, (N. J. Eq.) 114 A. 432; Lang v. Lang, 142 A. 485, 155 Md. 464; Hagy v. Hagy, 76 Pa. S.Ct. 288; Gelbman v. Gelbman, 184 N.Y.S. 902, 194 A.D. 137; Smith v. Smith, (Ky) 203 S.W. 884; Wesley v. Wesley, (Ky.) 204 S.W. 165; Rankin v. Rankin, 121 A. 778; Nolker v. Nolker, 257 S.W. 798, l. c. 805; Pickrel v. Pickrel, 86 S.W. 2d 336, l. c. 341, 342, 344; Vincent v. Vincent, 123 S.W.2d 86; Tegethoff v. Tegethoff, 198 Mo.App. 167, 199 S.W. 460, l. c. 464, 465; Tuttle v. Tuttle, 240 S.W. l. c. 511; Twyman v. Twyman, 27 Mo. 383; Willett v. Willett, 196 S.W. 1058; Williamson v. Williamson, 164 S.W.2d 606, l. c. 610; Culp v. Culp, 164 S.W.2d 623, l. c. 626. (3) The respondent was guilty of connivance in connection with appellant's alleged misconduct, hence, consented thereto, and consequently was not an injured and innocent party, and the court erred in not denying a decree on this ground. Herriford v. Herriford, 169 Mo.App. 641, 155 S.W. 855, l. c. 857; Donohue v. Donohue, 159 Mo.App. 610, 141 S.W. 465, l. c. 466-67; Harmon v. Harmon (Kan.), 208 P. 647, l. c. 651; Dennis v. Dennis, 68 Conn. 197, 36 A. 37, 34 L. R. A. 459, 57 Am. St. Rep. 100; O'Hern v. O'Hern, 206 Mo.App. 651, 228 S.W. 533, l. c. 537; Sargent v. Sargent, 114 A. 428, l. c. 439; Leavitt v. Leavitt (Mass.), 118 N.E. 262; Atha v. Atha, 121 A. 301, 94 N.J.Eq. 692, affirmed 122 A. 926, 95 N.J.Eq. 275. (4) Respondent was not entitled to a divorce for the reason that he was guilty of acts entitling appellant to a decree of divorce because of indignities and self-confessed drunkenness and the court erred in not denying respondent a decree and dismissing his petition on such grounds. Ellebrecht v. Ellebrecht, 243 S.W. 209, l. c. 210-211; McCoin v. McCoin, 218 S.W. 949, l. c. 950-951; Elder v. Elder, 186 S.W. 530, l. c. 532. Libbe v. Libbe, 138 S.W. 685, 157 Mo.App. 701; Gruner v. Gruner, 165 S.W. 871; Kistner v. Kistner, 89 S.W.2d 106, l. c. 111; Tarrant v. Tarrant, 137 S.W. 56, l. c. 57; Martensen v. Martensen, 186 S.W. 581, l. c. 582. Elder v. Elder, 186 S.W. 530; Libbe v. Libbe, 157 Mo.App. 701, 138 S.W. 685, l. c. 687. (5) The court erred in refusing to permit appellant to introduce evidence of respondent's indignities to her during their married life upon the theory of condonation, or any other theory, as the burden of proof was upon respondent to satisfy the court that he was the innocent and injured party and the question of condonation did not enter into it, and even if it did the offense was revived because of subsequent violation of respondent's marital duties. Lawson v. Lawson, 44 S.W.2d 191, l. c. 194, 195; Rose v. Rose, 129 Mo.App. 175, 107 S.W. 1089, l. c. 1090; McCoin v. McCoin, 218 S.W. 949, l. c. 951; Elder v. Elder, 186 S.W. 530; Wesley v. Wesley, (Ky.) 204 S.W. 162.

Henry M. Shughart and Walter A. Raymond, for Respondent.

(1) The trial court did not err or abuse his judicial discretion in refusing to dismiss respondent's petition because of the refusal of respondent to answer questions propounded to him upon the taking of his deposition. Laws of Mo., 1943, p. 353, Sec. 123; Graveman v. Huncker, 345 Mo. 1207, 139 S.W.2d 494. (2) The decree of divorce to respondent was sustained by substantial and credible evidence in the case. As the decree is sustained by substantial evidence its weight and credibility were for the trial court who saw the witnesses and observed their demeanor. The burden is on the appellant to show the decree below is wrong. Andris v. Andris, 343 Mo. 1162, 125 S.W.2d 38; Smotherman v. Smotherman, 185 S.W.2d 657; Pickett v. Pickett, 150 S.W.2d 587; Woods v. Woods, 90 S.W.2d 1070; Lampe v. Lampe, 28 S.W.2d 414; Galst v. Galst, 188 S.W.2d 843; Bowers v. Bowers, 225 Mo.App. 1197, 35 S.W.2d 39; Stevens v. Stevens, 158 S.W.2d 238; Ridge v. Ridge, 165 S.W.2d 294; Tate v. Tate, 227 Mo.App. 1141, 59 S.W.2d 790; Willett v. Willett, 196 S.W. 1058; Nolker v. Nolker, (Mo.) 257 S.W. 798; Howard v. Howard, 188 Mo.App. 564, 176 S.W. 483; State v. Evans, 267 Mo. 163, 183 S.W. 1059; State v. Lock, 300 S.W. 698; State v. Gruber (Mo.), 285 S.W. 426, 428; State v. Lawson (Mo.), 136 S.W.2d 992; State v. Mitchell (Mo.), 86 S.W.2d 185; State v. Wade, 306 Mo. 457, 268 S.W. 52; State v. Thomas, 318 Mo. 843, 1 S.W.2d 157; State v. Oliver, 333 Mo. 1231, 64 S.W.2d 118; State v. Cooper, 271 S.W. 471. (3) This record is devoid of any evidence that respondent was guilty of any connivance in connection with the adulterous acts of appellant. Herriford v. Herriford, 169 Mo.App. 641, 155 S.W. 855; Manville v. Manville, 81 S.W. 2d 382. (4) Respondent was the innocent and injured party and was therefore properly granted the divorce. Stevens v. Stevens, 158 S.W.2d 238; Ridge v. Ridge, 165 S.W.2d 294; Rankin v. Rankin, 17 S.W.2d 381; Tebbe v. Tebbe, 223 Mo.App. 1106, 21 S.W.2d 915; Donley v. Donley, 150 Mo.App. 660, 131 S.W. 356; Davis v. Davis, 206 S.W. 580. (5) The court committed no error prejudicial to appellant in refusing to permit appellant to prove incidents admittedly condoned and which did not amount to grounds of divorce in the light of appellant's statement on the stand that she was satisfied with her husband's conduct and wanted to continue to live with him. Mabry v. Swift & Co., 145 S.W.2d 163.

OPINION

Dew, J.

This is an action for divorce brought by the respondent against the appellant. The decree of divorce was granted by the trial court to respondent, and appellant appealed.

The petition for divorce is in the conventional form and the grounds alleged are, in effect, that the appellant (defendant) was guilty of such indignities to plaintiff (respondent) as to render his condition intolerable in that while plaintiff was away from his home in the military forces of the United States, defendant became infatuated with other men, associated with other men with whom she took trips away from home to divers places and remained with them long periods at places unknown to the plaintiff, improperly and immorally conducted herself during such association, and has refused to cease such association, all to the humiliation and embarrassment of the plaintiff among his friends and associates in his home town of Weston, Missouri; that plaintiff has separated from defandant, and established his own residence in Jackson County, Missouri, where he is stationed in the military service. The petition states that there were no children born of the marriage.

The answer of the defendant admitted the marriage, the fact that both parties are residents of the State of Missouri, that there were no children born of the marriage, and denied, generally, plaintiff's allegations of misconduct on her part.

Further answering, defendant specifically denied the allegations of misconduct in the petition as above related, and, in effect further denied that plaintiff was the innocent, injured and aggrieved party, but averred that he had offered defendant such indignities as to render her condition intolerable in that he is of a very jealous disposition and inclined to make false accusations against the defendant in both public and private places; that as a result of false statements involving defendant with plaintiff's brother-in-law, plaintiff has purposely or in disregard for the truth thereof, repeated such charges as true to the defendant and others, thereby slandering her, and exposing her to humiliation and embarrassment; that upon the basis of such false...