Smith v. Smith, No. 24865

CourtCourt of Appeal of Missouri (US)
Writing for the CourtMORGAN
Citation429 S.W.2d 771
PartiesClaud H. SMITH, Plaintiff-Respondent, v. Lula M. SMITH, Defendant-Appellant.
Docket NumberNo. 24865
Decision Date03 June 1968

Page 771

429 S.W.2d 771
Claud H. SMITH, Plaintiff-Respondent,
v.
Lula M. SMITH, Defendant-Appellant.
No. 24865.
Kansas City Court of Appeals, Missouri.
June 3, 1968.

Page 772

Roger D. Hines, Columbia, for appellant.

William F. Brown, Sedalia, for respondent.

MORGAN, Judge.

Respondent, herein referred to as the husband, was granted a divorce by default from appellant, herein referred to as the wife. After her motions to set aside the decree and for a new trial were overruled, the wife appealed. The husband's motion to dismiss the appeal for failure of the wife to comply with Rules 83.05 and 78.01, V.A.M.R., is overruled and the case will be considered on its merits.

The record reveals the parties were married on April 26, 1958, and lived together until the month of November, 1966. Both had been married previously and there were no children by this marriage. The husband filed a petition for divorce on December 13, 1966, and the wife filed an answer thereto on December 23, 1966. She later, on April 27, 1967, filed a cross bill for divorce. The case came on for trial on May 22, 1967, and it is agreed both parties were represented by counsel and were each personally present in the court room. Witnesses were available and generally present. The trial court either waited or conducted other court business while the parties, with counsel, sought to negotiate a property settlement. After resolving what then was apparently a satisfactory division of their property, a written contract was prepared and signed by them. The contract was not submitted to the trial court for its approval or disapproval. Evidence was offered by the husband, but none was offered by the wife to sustain her answer and cross bill. We have not been furnished

Page 773

a transcript of the evidence offered, and apparently none was made. The court found the issues in favor of the husband and entered a decree dissolving the bonds of matrimony between the parties.

On June 5, 1967, the wife's different and present counsel filed the two motions indicated and sought to have the decree set aside. We have the transcript of the extended hearing on these motions held June 20, 1967, and will consider all points raised therein which have been carried forward in the wife's brief and preserved for review. They assert the trial court erred (1) because the evidence offered and the petition were insufficient to warrant a divorce upon the ground of general indignities, (2) because the evidence shows that the decree was obtained as the result of collusion, (3) because at the date of the trial appellant was incapable, because of her mental condition, of adequately understanding the effect of her actions and presenting her defense.

The wife by argument infers the absence of a record of the original hearing is indicative of collusion. Full attention will be given this rather thinly veiled accusation against every one involved while considering point (2) as indicated, but a proper review must begin from a premise long established as a definite rule of law. Our Supreme Court has declared: 'In the absence of proof to the contrary, there is always a presumption of jurisdiction and right action by a court of general jurisdiction.' State ex rel. Nickerson v. Rose, 351 Mo. 1198, 175 S.W.2d 768, 771. In Mastin v. Ireland et al., 320 Mo. 617, 8 S.W.2d 900, 902, we find, 'Every presumption must be indulged in favor of the correctness of the decision of the trial court; this has been the law of this state ever since the decision of Boone County v. Corlew, 3 Mo. 12.' We held in Lewis v. Lewis, 238 Mo.App. 173, 176 S.W.2d 556, at 561, 'The presumption of validity which surrounds the judgment of divorce in this case includes the presumption of the existence of every essential fact which must have existed in order for the court to have rendered a valid decree.' This holding was recently quoted with...

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4 practice notes
  • Hawkins v. Hawkins, No. 8954
    • United States
    • Court of Appeal of Missouri (US)
    • December 24, 1970
    ...general matter, the record creates much the same impression and might fairly prompt some of the comments made in Smith v. Smith, Mo.App., 429 S.W.2d 771, and Hudson v. Hudson, 176 Mo.App. 69, 162 S.W. 1062; however, no appraisement of the defendant's good faith is necessary, and we undertak......
  • Nandam v. Drummond
    • United States
    • Court of Appeal of Missouri (US)
    • September 14, 1999
    ...existed in order for the court to enter a valid decree." Linzenni v. Hoffman, 937 S.W.2d 723, 725 (Mo. banc 1997)(citing Smith v. Smith, 429 S.W.2d 771, 773 ((Mo. App. 19. Plaintiff's challenge is a procedural question as to the time when a final judgment is entered for purposes of determin......
  • Ludwig v. Ludwig, No. WD
    • United States
    • Court of Appeal of Missouri (US)
    • May 14, 1985
    ...Wagner v. Shelly, 241 Mo.App. 259, 235 S.W.2d 414, 417 (1950). See also Bloss v. Bloss, 251 S.W.2d 78, 80 (Mo.1952); Smith v. Smith, 429 S.W.2d 771, 774 (Mo.App.1968). Thus the question of consideration is moot. Irene contends on appeal that the instrument evidences an inter vivos gift of a......
  • Linzenni v. Hoffman, No. 79128
    • United States
    • United States State Supreme Court of Missouri
    • January 21, 1997
    ...a judgment extends to every essential fact that must have existed in order for the court to enter a valid decree. Smith v. Smith, 429 S.W.2d 771, 773 (Mo.App.1968). Under the above presumptions, Page 726 the burden is not on the respondent to establish the documents and docket entry were fi......
4 cases
  • Hawkins v. Hawkins, No. 8954
    • United States
    • Court of Appeal of Missouri (US)
    • December 24, 1970
    ...general matter, the record creates much the same impression and might fairly prompt some of the comments made in Smith v. Smith, Mo.App., 429 S.W.2d 771, and Hudson v. Hudson, 176 Mo.App. 69, 162 S.W. 1062; however, no appraisement of the defendant's good faith is necessary, and we undertak......
  • Nandam v. Drummond
    • United States
    • Court of Appeal of Missouri (US)
    • September 14, 1999
    ...existed in order for the court to enter a valid decree." Linzenni v. Hoffman, 937 S.W.2d 723, 725 (Mo. banc 1997)(citing Smith v. Smith, 429 S.W.2d 771, 773 ((Mo. App. 19. Plaintiff's challenge is a procedural question as to the time when a final judgment is entered for purposes of determin......
  • Ludwig v. Ludwig, No. WD
    • United States
    • Court of Appeal of Missouri (US)
    • May 14, 1985
    ...Wagner v. Shelly, 241 Mo.App. 259, 235 S.W.2d 414, 417 (1950). See also Bloss v. Bloss, 251 S.W.2d 78, 80 (Mo.1952); Smith v. Smith, 429 S.W.2d 771, 774 (Mo.App.1968). Thus the question of consideration is moot. Irene contends on appeal that the instrument evidences an inter vivos gift of a......
  • Linzenni v. Hoffman, No. 79128
    • United States
    • United States State Supreme Court of Missouri
    • January 21, 1997
    ...a judgment extends to every essential fact that must have existed in order for the court to enter a valid decree. Smith v. Smith, 429 S.W.2d 771, 773 (Mo.App.1968). Under the above presumptions, Page 726 the burden is not on the respondent to establish the documents and docket entry were fi......

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