Scotton v. Scotton

• Decision Date: 14 August 1962
• Docket Number: No. 8117,8117
• Parties: Vada Victoria SCOTTON, Plaintiff-Appellant, v. Clinton Ralph SCOTTON, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 501

359 S.W.2d 501

Vada Victoria SCOTTON, Plaintiff-Appellant, v. Clinton Ralph SCOTTON, Defendant-Respondent.

No. 8117.

Springfield Court of Appeals, Missouri.

Aug. 14, 1962.

William A. Moon, Springfield, for appellant.

No Appearance for respondent.

McDOWELL, Judge.

Plaintiff, Vada Victoria Scotton, appeals from a judgment of the Circuit Court of Greene County dismissing her petition for divorce for lack of one year's residency in Greene County and the state of Missouri and lack of jurisdiction of the court.

The petition was filed October 18, 1961, against defendant, Clinton Ralph Scotton. It was in conventional form and supported by affidavit for divorce executed by plaintiff. It alleged the lawful marriage of the parties at Plymouth, Indiana, on August 20, 1945, and a final separation for alleged indignities specified and that plaintiff is now a resident of Greene County, Missouri, and that she has resided within the state for more than one whole year next before the filing of the petition; that defendant is a non-resident of the state of Missouri, and his present address is unknown. The prayer is for divorce and restoration of plaintiff's former name, Hall.

The defendant, although duly notified by publication, failed to appear within the time prescribed by law and default was by order of the court entered against defendant.

The cause was tried February 9, 1962, before the Honorable Douglas W. Greene, Judge of the Circuit Court of Greene County, Missouri, Division II. The court, after hearing all of the evidence, entered judgment dismissing plaintiff's petition for lack of one year's residency on the part of plaintiff and lack of jurisdiction of the court. Plaintiff appealed.

Plaintiff's evidence shows that she was married to the defendant on August 20, 1945, in Plymouth, Indiana, and separated April 9, 1956, in New Jersey. Her evidence fully supports the allegations of indignities in her petition as cause of the separation. She testified that she is now a resident of Greene County, Missouri, and has resided within the State for more than one year preceding the filing of her petition. She gave this testimony:

'Q. Where were you raised, Mrs. Scotton? A. Right here in Springfield.

'Q. Did you go to school here? A. Yes, sir.

'Q. How long did you live here in Springfield? A. Well, let's see--I was about seven years old when my mother and father came here, and I lived here until 1940.

'Q. In October of 1960, then, did you move back to Springfield, Missouri? A. Yes, sir.

'Q. And where did you establish your home at that time? A. I was with my sister.

'Q. What was that address? A. 1815 South Franklin.

'Q. And, at that time, did you move all of your belongings here? A. I moved everything I could put in the car.

'Q. Did you establish your home here at your sister's? A. I left my things--I had to go back on account of my daughter being sick.

'Q. Now, at the time you moved here in October of 1960, was it your intention to make this your permanent home and residence? A. Yes, sir.

'Q. Did you have any intention of returning back to New Jersey to live? A. No. I didn't.

'Q. What is your occupation, Mrs. Scotton? A. I am a nurse, a PN.

'Q. Were you connected with any particular hospital there in New Jersey? A. I worked part time at Allsoul Hospital, and then did private duty around town.

'Q. Did you terminate your relations there in the east before you came to Missouri? A. I did.'

Witness testified that she gave the hospital two weeks notice that she was leaving; that she made arrangements through correspondence with her sister in Springfield to live in her home. She gave this evidence: 'A. Well, I came around the first of October, and I left here around the eighth of November.

'Q. Now, what was your purpose of leaving at that time? A. My daughter was sick, and I went back to be with her.

'Q. What was the difficulty with your daughter? A. Well, she was expecting.'

She testified that her daughter lived in Morristown, New Jersey; that at the time she moved to Springfield she had no intention of returning but that her daughter called her by phone and said she was very sick and that was when she went back. She gave this evidence:

'Q. Now, when you left, did you intend to leave here permanently, or just a temporary--? A. That was only temporarily.

'Q. And did you consider your sister's home your home while you were gone to New Jersey? A. Yes.

'Q. And how long, then, did you remain with your daughter? A. Well, I was there until October of this year. And then I came back.

'Q. And, what was your purpose in staying so long there in New Jersey? A. Well, we had an awful snowstorm and I couldn't get back. And then I got sick myself, and I had bursitis and I was in the hospital from the 28th--26th of April. * * * I also had pneumonia.

'Q. And then, when you got out of the hospital, how long was it before you were able to travel? A. Well, my doctor--it was in June, I was to get under the doctor's care--I was still taking shots. And the doctor didn't want me to leave then, and I said, 'Well I want to get back.' And he said, 'I would advise you not to start driving with your arms like they are; I would like for you to stay until we can get this straightened up.''

She said she continued to stay in Morristown and did temporary work while there, nursing duty; that she helped part time on the floors when they needed her but she maintained her residence here in Springfield. She gave this evidence:

'Q. My question was, Mrs. Scotton, during the time that you were there in Morristown, New Jersey, did you maintain your home here at your sister's in Springfield? A. Yes, sir.

'Q. Were your personal belongings here? A. That's right.

'Q. And, did you consider this as your home? A. That's right.

'Q. Was it your intention, while you were in New Jersey, to return here to your home as soon as you were physically and financially able to do so? A. Yes, sir.

'Q. And did you return to your home here as soon as you were physically and financially able to do so? A. Yes, sir.

'Q. And when was that? A. That was in October.

'Q. The first part of October of 1961? A. Yes.

'Q. Have you employment here Mrs. Scotton? A. Yes. I am working at the Burge Hospital.

'Q. How long have you worked at Burge Hospital? A. Since the first day of November.

'Q. of '61? A. That's right.

'Q. What type of work are you doing there? A. I have charge of the central supplies of an evening.

'Q. And, have you transferred your nurse's license to Missouri, or made application to do so? A. Yes; I have.'

'EXAMINATION BY THE COURT:

Q. When did you make your application to transfer your nurse's license to Missouri, Mrs. Scotton? A. In November.

'Q. Do you have a driver's license? A. Yes, I do.

'Q. What state is that issued from? A. From New Jersey.'

She testified that she had never made application for a Missouri driver's license; that it was due this month and she will have it transferred to Missouri. She stated she was not driving her car at this time; that when she left New Jersey she went to the Post Office and had her mailing address changed in care of her sister; that was in October, 1961; that when she was here the first time she had not received any letters transferred from New Jersey; that she had not left a forwarding address at that time. She stated that when she went back she left wearing apparel at her sister's, most of her underclothes, except just what she had to have and her dresses she did not need; that she took her nurse's uniforms and cap. She gave this evidence:

'Q. Did you take other clothes back with you? A. I took just what necessary things I needed.

'Q. And left all your other clothes down here, did you? A. I left my things and clothes down here.'

Her testimony was that she left Springfield on November 8th and her daughter's baby was born November 10th. She stated she had understood that her daughter's mother-in-law was going to take care of the baby but that her father-in-law had gotten sick and she could not go and that was her reason for going back, was to take care of the baby.

In answer to the court's question plaintiff testified that when she left New Jersey in October, 1960, she had a mobile trailer; that her daughter wanted it left there; that she intended to get it later on but when she went back she inquired and found it would cost her $500.00 to have it moved so she sold it in September, 1961. She said she did not live in the trailer after she went back to New Jersey but she did go out and straighten things up in it. She testified that all the time she was back she lived in the home of her daughter; that she stayed there from November 10, 1960, until October, 1961, when she came back to Missouri; that she went to work when she was back in New Jersey in December, 1960, and worked up until September or October, 1961, aside from the period she was hospitalized. She stated she was on private duty cases part time and in the hospital. She testified she had insurance with Allstate but had not had notice of premiums transferred yet. She stated that as soon as she could get everything settled she wanted to move to herself.

Plaintiff offered evidence of witnesses living in Springfield who had known her for some 30 or 40 years who testified to the good reputation of plaintiff for good conduct.

Mrs. Martha Pickett, a resident of Springfield and sister of plaintiff, testified that plaintiff had made arrangements to move into her home in October, 1960; that she had consented that plaintiff make her home with her. She stated that plaintiff was just going to live with her as a member of the family; that she had a room at her home and the rest of the house she shared with the family. She stated that plaintiff had moved her personal belongings into her home; that she was to live there until she wanted to move or maybe until she got a job. She stated that plaintiff was intending to make her home there indefinitely...