Simon v. Simon, 42494
| Decision Date | 14 April 1952 |
| Docket Number | No. 42494,No. 1,42494,1 |
| Citation | 248 S.W.2d 560 |
| Parties | SIMON v. SIMON |
| Court | Missouri Supreme Court |
Horace Warren Kimbrell, Kansas City, for appellant.
R. Carter Tucker, John Murphy, William H. Wilson, J. Gordon Siddens, Kansas City, for respondent.
COIL, Commissioner.
This is a divorce case. Plaintiff, wife, and defendant husband, were married in 1945. In was her third and his first marriage. They adopted one child in January 1948 and another in the summer of 1949. At the time of trial in 1951 these children were 3 and 2 years of age. Plaintiff, 38, and defendant, 39, separated in June or July 1950. Plaintiff averred general indignities. The trial court's judgment awarded her a divorce, custody of the children and $200 monthly for their support, $25,000 gross alimony, and $2,000 attorneys' fees. After unavailing after-trial motions, including a motion for new trial, defendant has appealed from the ensuing final judgment.
Plaintiff-respondent's motion to dismiss this appeal was taken with the case. It appears that this cause was first tried in September 1950, resulting in a judgment ordering defendant to pay $200 a month for the support of the minor children and $500 attorneys' fees. The cause was then by order of the trial court returned to 'general docket for reassignment.' It was then tried anew in a different division of the court resulting in the judgment from which the instant appeal is taken. The ground of plaintiff's motion is this: that because defendant has contributed nothing to the support of his minor children since June 1950, he is guilty of 'willful and contemptuous disrespect for the orders of the court and, therefore, appellant should be denied the right to be heard on this appeal.' This brief statement of the ground of the motion and the record facts demonstrate that the motion is without merit. The motion to dismiss appeal is overruled.
On the merits, defendant contends that: (1) plaintiff failed to prove that she is an 'innocent' party, and (2) the trial court was without jurisdiction to grant a divorce because plaintiff attached to her petition a false affidavit; defendant also contends the court erred in awarding alimony in gross, and that the amounts awarded for alimony, support of the children, and attorneys' fees are excessive.
Defendant does not contend that the evidence adduced failed to prove plaintiff an injured party. He contends that plaintiff's evidence affirmatively shows that she was not an innocent party. One seeking a divorce must prove himself to be an injured and innocent party. Cody v. Cody, Mo.App., 233 S.W.2d 777, 781; Chapman v. Chapman, Mo.App., 230 S.W.2d 149, 151[3, 4].
Defendant says that portions of plaintiff's testimony affirmatively demonstrate that she is not an innocent party. We examine these items of testimony in the light of the entire record.
Plaintiff testified that immediately prior to the time when plaintiff says defendant finally left their home, she removed certain papers from his coat pocket.
Plaintiff testified, in explanation of this incident, that defendant had been away from home for a week; that it had theretofore been determined that there was to be a final separation and divorce; that she could see that among the papers was her title to an automobile which defendant had bought for her; that she knew or thought the papers also had to do with the sale of their former home which had also been in her name; that he had refused to tell her what happened to the proceeds of the sale. She said defendant asked if she had removed the papers and she admitted she had; that defendant replied that he was going to show her that second mortgage. Later, plaintiff took the second mortgage on the former home, which proved to be among the papers removed and which she claimed as her sole property, to her lawyer. The mortgage was later sold for $2,200, which money she used for living and fixed expenses from the time of the separation to the time of trial.
Plaintiff testified that she habitually went through the pockets of her husband's clothes during their marriage. She also testified, however, that this was a custom or a habit initiated by defendant's going through her pocketbook; and further that neither plaintiff nor defendant thought anything about the action of the other or considered it of any importance.
Plaintiff testified that she 'swung' at her husband on a number of occasions; on one occasion threw a newspaper at him, and on another, a telephone book; that she had frequently called him a 'kike.' (He is a Jew and she is a gentile.) Plaintiff also testified, however, that she did these acts under provocation, when the husband had begun an argument which had exasperated her or when he was physically abusing her by twisting and bruising her arm.
Plaintiff testified that on one occasion she received flowers at Christmas from a man in St. Louis whom she had known in her professional capacity as a model. She said the flowers were in the nature of a 'Christmas card' and that the incident went entirely unnoticed at the time.
All the foregoing incidents might, under some circumstances, constitute indignities by a wife toward her husband. Each, alone or in combination, might affirmatively show that a wife was not an 'innocent' party within the meaning of that word as used in connection with one's right to a divorce. But these incidents do not support that conclusion in this case. These papers were removed at a time when there was some justification for plaintiff's resort to this measure at the very moment of final separation, in order to obtain some information regarding finances which therefore had been refused her. And while the habits of a husband or a wife in habitually searching the pocketbook or pockets of the other, may or may not be conductive to marital happiness, nevertheless when the actions are mutual and unopposed by either party, the searches are not 'indignities.' Likewise, throwing a newspaper and a telephone book at a husband who provoked the acts by physical violence, and hurling the epithet 'kike' at a Jewish husband, if provoked as plaintiff testified it was, are not acts necessarily requiring the conclusion that a wife is not an 'innocent' party.
The other items of testimony to which defendant points concern some of plaintiff's statements as to her marital happiness with defendant. It is true that some of the testimony of plaintiff is vague and in some respects inconsistent and contradictory. But defendant would have us isolate portions of her testimony such as plaintiff's assertion that she had never been happy with defendant and that 'I think the nearest that I ever loved Albert is when we got our babies, because they meant so much to me'; and that she had always known the marriage wouldn't work and had so told defendant before they were married. Defendant contends that these statements show that plaintiff entered into this marriage knowing it wouldn't succeed; that the inference follows that it was a marriage of convenience and that a woman entering into a marriage in such a state of mind is not entitled to a divorce. However, despite the contradictory nature of some of plaintiff's statements in the record as to her attitude toward the marriage, her reasons for desiring a divorce, and as to the cause of the trouble between plaintiff and defendant, when the entire record is examined, a reasonable view of all of plaintiff's testimony does not attribute to the isolated portions seized upon by defendant the meaning which he ascribes to them. Plaintiff in her testimony professed love for her husband at the time of the marriage, love for him as late as the early spring of 1950, told of her efforts to hold the marriage together and of her attempts to remove her husband from the all-pervading influence of the members of his family who were hostile to her.
The reasonable construction of plaintiff's statements pointed to by defendant, when considered in connection with her entire testimony is that plaintiff had some doubts as to the eventual success of her marriage due to her knowledge of the unfriendly attitude of his family toward her, and to the fact that she, a gentile, was marrying one of the Jewish faith. We cannot say, however, that plaintiff entered into this marriage as a marriage of convenience or with no resolution or desire for its success. Nor can we say that the isolated portions of her testimony pointed to by defendant respecting her marital happiness and her premarital view as to the success of the marriage constituted evidence from which it may be said that plaintiff was not an 'innocent' party.
An 'innocent' party is not required to conclusively prove freedom from all fault, or such exemplary conduct as excludes any misconduct or all unwise or uncalled-for acts. He or she need show only that, under all the circumstances of a particular case, he or she has not been guilty of conduct constituting a ground or grounds for divorce under RSMo 452.010, V.A.M.S. Cody v. Cody, supra, 233 S.W.2d 782[6, 7]; Politte v. Politte, Mo.App., 230 S.W.2d 142, 148. Plaintiff sustained her burden of proof in the instant case.
Furthermore, defendant withdrew his cross-petition and sought to defeat plaintiff's action so that they might again live together. He professed his continuing and abiding love for plaintiff and expressed his confident judgment that he and plaintiff could even now make a success of their marriage.
Defendant next contends that plaintiff's affidavit to her petition was false and that the court was thereby without jurisdiction to award a divorce. Plaintiff's petition averred in part 'that the defendant since said marriage has been continuously involved in law violations and in the toils of legal proceedings, that he has been guilty of commission of offenses against the laws of the states of Missouri and Kansas and the United States.' Def...
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