Smith v. Smith

• Decision Date: 03 June 1968
• Docket Number: No. 24865,24865
• Citation: 429 S.W.2d 771
• Court: Missouri Court of Appeals
• Parties: Claud H. SMITH, Plaintiff-Respondent, v. Lula M. SMITH, Defendant-Appellant.

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.

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 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 approval in Gomez v. Gomez, Mo., 336 S.W.2d 656, 660, where the record failed to show proof by plaintiff of the jurisdictional question of one whole year residency in the state next before the filing of the petition; and the court further stated, 'Another applicable rule relates to the presumption that a judgment is valid. Where the judgment is within the jurisdiction of the court rendering same it is presumed to be valid.' State ex rel. Levine v. Trimble, 320 Mo. 526, 8 S.W.2d 927, 930; State v. Winn, Mo.App., 191 S.W.2d 367, 368; Jackson et al. v. Merz, Mo.App., 223 S.W.2d 136. With such presumptions existing, who had the burden of rebutting their effect at the hearing on the motions in the trial court or in this appeal? The present record makes it obvious that the wife was represented in the initial proceeding by an experienced and most competent attorney. The failure to preserve the evidence offered was as much the decision of the wife as that of the husband. She is not now in a position to claim prejudice by this fact alone. Further, 'The duty devolves on the appellant, as this court has often said, of preserving the evidence offered at the trial, and of convincing this court that error was committed by the trial court, in accordance with the familiar principle that he was asserts error must prove error.' Mastin v. Ireland et al., supra, 8 S.W.2d l.c. 902. Her failure and present inability to comply with this duty is in no manner prejudicial to her in view of the full transcript of the evidence offered at the hearing on the motions now being available, particularly so, in view of its reflecting a rehash of that evidence initially offered plus offers to present that evidence she now claims could have been presented to sustain her answer and cross bill. Under the record as made, full review of all questions raised is possible.

We move on to the wife's assertion the petition filed by the husband and his proof of allegations therein were insufficient to warrant a divorce on the ground of general indignities. The petition set out the marriage and separation, the husband's status as a resident of Missouri for more than one whole year next preceding the filing of the petition, a request for service by mail since the wife was in Butler, Alabama, an allegation he had treated her with kindness...