State ex rel. Fawkes v. Bland

• Decision Date: 12 April 1948
• Docket Number: 40654
• Citation: 210 S.W.2d 31,357 Mo. 634
• Parties: State of Missouri at the Relation of Everett A. Fawkes, Relator, v. Ewing C. Bland, Nick T. Cave and Samuel A. Dew, Judges of the Kansas City Court of Appeals, and Letha Fawkes
• Court: Missouri Supreme Court

210 S.W.2d 31

357 Mo. 634

State of Missouri at the Relation of Everett A. Fawkes, Relator, v. Ewing C. Bland, Nick T. Cave and Samuel A. Dew, Judges of the Kansas City Court of Appeals, and Letha Fawkes

No. 40654

Supreme Court of Missouri

April 12, 1948

Original Proceeding in Certiorari.

AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.

Affirmed in part and reversed and remanded in part.

Luther Adamson and Walter A. Raymond for relator.

(1) The trial court was without jurisdiction to hear and consider defendant's "cross petition for separate maintenance of defendant and child and for custody of child." The cross petition was improperly united with the answer and is not such a cause of action as can be interposed in defense to a petition for divorce. Sharpe v. Sharpe, 132 Mo.App. 278, 114 S.W. 584; Weisheyer v. Weisheyer, 14 S.W.2d 486; State ex rel. v. Haid, 26 S.W.2d 939; Sec. 2, Civil Code of Missouri; Sec. 1516, R.S. 1939; Milster v. Milster, 209 S.W. 620; Rule 3.02 (c) Supreme Court. (2) Even though this court should hold that a defendant may now interpose a cross petition for separate maintenance in a divorce action defendant failed to plead and maintain by proof such attempted action herein, the finding and judgment is without support in the evidence and upon the pleadings and upon the face of the record, and under both the law and the evidence the defendant is not entitled to any affirmative relief. Brady v. Brady, 71 S.W.2d 42; Glick v. Glick, 41 S.W.2d 624; Snuffer v Snuffer, 249 S.W.2d 673; Bingham v. Bingham, 29 S.W.2d 99. (3) The judgment is excessive in the amounts of maintenance allowed and is in conflict with the station in life of the parties and with plaintiff's wealth and earning capacity. McGrady v. McGrady, 48 Mo.App. 668; Youngs v. Youngs, 78 Mo.App. 225; Bittel v. Bittel, 147 S.W.2d 139. (4) Under all the law and the evidence the finding and judgment of the court should have been for plaintiff on his petition and against defendant on her answer. (5) The trial court and the Kansas City Court of Appeals erred in holding that defendant's cross-action for separate maintenance could be ingrafted upon the plaintiff's statutory action for divorce. Prior to the effective date of the new Code of Civil Procedure it was uniformily held that a cross-action for separate maintenance could not be maintained by a defendant in a divorce action. Fawkes v. Fawkes, 204 S.W.2d 132; Sharpe v. Sharpe, 134 Mo.App. 278, 114 S.W. 584. (6) Section 37 of the new Code of Civil Procedure is not applicable to actions for divorce and separate maintenance and the trial court and court of appeals erred in holding that such section was applicable to such actions. Fawkes v. Fawkes, 204 S.W.2d 132; State ex rel. Kansas City P. & L. Co. v. Smith, 342 Mo. 75, 111 S.W.2d 513; State ex rel. Rodgers v. White, 201 S.W.2d 781; Sharpe v. Sharpe, supra; Rosebraugh v. State Social Security Comm., 196 S.W.2d 27; Arnold v. Arnold, 222 S.W. 996; State ex rel. Couplin v. Hostetter, 344 Mo. 770, 129 S.W.2d 1. (7) The decision of the Kansas City Court of Appeals in this case violates the rule that a later general statute does not affect a repeal of a prior special statute but in the case of a repugnancy between them the special will prevail. Fawkes v. Fawkes, 204 S.W.2d 132; State ex rel. Hyde v. Buder, 315 Mo. 791, 287 S.W. 307; State ex rel. Monier v. Crawford, 303 Mo. 652, 262 S.W. 341; State ex rel. City of Springfield v. Smith. 344 Mo. 150, 125 S.W.2d 883; State ex rel. Newton v. McDowell, 334 Mo. 653, 67 S.W.2d 50. (8) It violates the rule that a later general statute whose subject matter is sufficiently broad to include the special matter of the special statute repeals the special statute only when the repeal is expressed or the provisions of the general statute are manifestly inconsistent with those of the special. Hurlburt v. Bush, 284 Mo. 397, 224 S.W. 323; Kavanagh v. Dyer O'Hare Hauling Co., 189 S.W.2d 157. (9) This being an appeal by plaintiff from an adverse decision in an action for a decree of divorce, the case is triable de novo here is in equity. It is the duty of this court to review the evidence and make its own findings. Kister v. Kister, 89 S.W.2d 106; Bowzer v. Bowzer, 236 Mo.App. 514; Ridge v. Ridge, 165 S.W.2d 294.

W. S. McClintock and Arthur L. Quant for respondents.

(1) Appellate court will pay deference to findings of trial court on conflicting evidence. Holland v. Martin, 198 S.W.2d 16; Little v. Kansas City, 197 S.W.2d 1005; Hecker v. Putney, 196 S.W. 442; Golden v Golden, 197 S.W.2d 716. (2) Each case, as to claim judgment is excessive, must be considered on the particular facts of that case. Marshall v. St. Louis Union Trust Co., 196 S.W.2d 435. (3) In determining excessiveness, presumption in favor of right action by trial court. Marshall v. St. Louis Union Trust Co., supra. (4) Amount of judgment must be grossly excessive, unmistakably beyond bounds of reason or shocking to judicial conscience, before appellate court will interfere. Marshall v. St. Louis Union Trust Co., supra. (5) On question of excessive judgment, reduced purchasing power of the dollar must be considered. Marshall v. St Louis Union Trust Co., supra. (6) Cross petition for separate maintenance is equitable in nature. Bingham v. Bingham, 29 S.W.2d 99, 325 Mo. 596; Glick v. Glick, 41 S.W.2d 624, 226 Mo.App. 271; Klepper v. Klepper, 180 S.W. 461, 193 Mo.App. 46; Reeve v. Reeve, 160 S.W.2d 804; Wright v. Wright, 165 S.W.2d 870, 350 Mo. 325; Dorrance v. Dorrance, 165 S.W. 783, 257 Mo. 317, (7) Appellant permanently ceased to cohabit with respondent, without her consent, thereby abandoning her. Broaddus v. Broaddus, 221 S.W. 804; Brady v. Brady, 253 S.W. 172; Young v. Young, 78 Mo.App. 225; Polster v. Polster, 123 S.W. 81, 145 Mo.App. 606; Kindorf v. Kindorf, 161 S.W. 318, 178 Mo.App. 635; McPheeters v. McPheeters, 227 S.W. 873, 207 Mo.App. 634. (8) Appellant failed to furnish reasonable support, which with (7) supra, authorized respondent to petition for separate maintenance. Broaddus v. Broaddus, supra; Brady v. Brady, supra; Carder v. Carder, 60 S.W.2d 706, 227 Mo.App. 1005. (9) The transcript fails to show sufficient proof to constitute indignities suffered by appellant at hands of respondent, or that he was the innocent party. Haushalter v. Haushalter, 197 S.W.2d 703. (10) Per contra, the transcript does show a studied, prolonged course of indignities, inflicted and permitted by appellant on respondent, and that she is the innocent party. Haushalter v. Haushalter, supra. (11) The new Code of Procedure (Laws, Missouri, 1943, page 353, et seq.) authorizes a cross petition for separate maintenance in a divorce suit, in some cases requiring, in others allowing, all adversary "claims" between same parties, in one action. Such question was presented to, but not decided by, this court, in State ex rel. Elliott v. James, 194 S.W.2d 700. (12) A "claim" is, in a juridical sense, a demand of some matter of right made by one person on another, to do, or to forbear to do, some act or thing as a matter of duty. Prigg v. Commonweath of Pa., 41 U.S. 539, 10 L.Ed. 1060; United States v. Spaulding, 13 N.W. 357; Buhl v. Fort St. Union Depot, 67 N.W. 829, 98 Mich. 596; Adamson v. Wolfe, 139 S.W.2d 674, 200 Ark. 360. (13) A counterclaim is a counter demand existing in favor of a defendant against a plaintiff. It has a broader significance than either recoupment or set off. Fricke v. Fuetterer, 288 S.W. 1000, 220 Mo.App. 623. (14) The new Code demands that a defendant set up, as a counterclaim, any claim in defendant's favor against plaintiff, arising out of the transaction or occurrences involved in plaintiff's suit, even though different in kind from claim of plaintiff. Laws 1943, p. 377, secs. 73, 74. (15) Such provisions of the new Code adopt Federal Equity Rule 13 (a). This renders a suit for separate maintenance, under the new Code, in a divorce action, a compulsory cross petition, because it arises out of and involves the same transaction, to-wit, the marital relations and status of the parties to the divorce action. Secs. 73, 74, Civil Code of Missouri, supra; Rule 13 (a), Federal Rules of Civil Procedure, following Section 723c, 28 U.S.C.A.; In re Rosing's Estate, 337 Mo. 544; General Box Co. v. Missouri Utilities Co., 331 Mo. 845, 55 S.W.2d 442; Schott v. Continental Auto Ins. Underwriters, 326 Mo. 92, 31 S.W.2d 7; American Natl. Ins. Co. v. Keitel, 186 S.W.2d 447; Simonin's Sons v. Amer. Can Co., 24 F.Supp. 765; Farr v. Detroit Trust Co., 116 F.2d 807; Hancock Oil Co. v. Universal Oil Products Co., 115 F.2d 45; Big Cola Corp. v. World Bottling Co., 134 F.2d 718; Atlantic C. Line R.R. Co. v. United States Fidelity & Guaranty Co., 52 F.Supp. 177; Gallahar v. George A. Rheman Co., 50 F.Supp. 655; Ohio Casualty Ins. Co. v. Maloney, 3 F.R.D. 341; Pennsylvania R. Co. v. Musante-Phillips, Inc., 42 F.Supp. 340; Williams v. Robinson, 1 F.R.D. 211. (16) In any event, defendant, in answer to plaintiff's suit for divorce, may, under the new Code, set up as many "claims," either legal, equitable, or both, as defendant may have against plaintiff. Laws 1943, sec. 37, p. 370. (17) Such provision of the new Code adopts Federal Rule 18 (a). Its purpose is to clarify and simplify practice; to cause to be determined every action on its merits; to eliminate multiplicity of suits; to cause to be determined, in one action, all adversary claims between two parties. The law is to be liberally interpreted, to cause to be determined litigated issues on merits, rather than on theories. Rule 18 (a), Federal Rules of Civil Procedure, following Sec. 723 (c), 28 U.S.C.A.; Moore on Fed. Practice, Chap. 18, pp. 2111-2117; Bruckman v. Hollzer, 152 F.2d 730; Moore v. Hechington, 127 F.2d 746. Bee Mach. Co. v....