Tate v. Tate
| Decision Date | 03 April 1933 |
| Docket Number | No. 17468.,17468. |
| Citation | 59 S.W.2d 790 |
| Parties | LENAH TATE, RESPONDENT, v. WILLIAM M. TATE, APPELLANT. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Atchison County. — Hon. D.D. Reeves, Judge.
AFFIRMED.
Henry B. Hunt for respondent.
James F. Gore for appellant.
This case is a suit for divorce brought by a wife against her husband. It was filed in the Circuit Court of Atchison County, Missouri, in vacation, on the 18th day of December, 1930. Summons was duly issued and served upon the defendant in said County on the 20th of December, 1930.
At the August Term, on August 24, 1931, an amended petition was filed, in which among other things, plaintiff alleged that she was lawfully married to defendant on the 17th day of May, 1930, in Springfield, Illinois, and continued to live with him as his wife until November 15, 1930; that she faithfully demeaned herself and discharged all her duties as such wife, treating him with kindness and affection, but that defendant, wholly disregarding his duties as husband, offered such indignities to plaintiff as to render her condition intolerable in this: (here were set out the alleged indignities.)
Said amended petition contained this further allegation: — "Plaintiff further states that the offenses and injuries complained of, were committed within the State of Missouri, and while both plaintiff and defendant resided within said state."
On the same day, August 24, 1931, defendant filed answer admitting the marriage and that they continued to live together from said May 17, 1930, until November 15, 1930, and that no children were born of said marriage. The answer denied every other allegation in the petition.
The trial court, after hearing the evidence, found that "the offenses and injuries complained of were committed within the State of Missouri, and while both plaintiff and defendant resided within said state."
The court further found that the marriage took place as alleged and that since said marriage defendant, wholly disregarding his duties as husband, "has offered such indignities to the plaintiff as to render her condition intolerable; that the above matters so alleged and proved in behalf of the plaintiff are sufficient in law to entitle her to the relief prayed for," that plaintiff should recover alimony in the lump sum of $2500; that there were no children born of said marriage and that plaintiff's maiden name be restored to her. Judgment was rendered in accordance therewith. The defendant thereupon duly appealed.
It is conceded that after the marriage on May 17, 1930, in Springfield, Illinois, the parties took a short honeymoon trip and then went to reside in defendant's home in Tarkio, Atchison County, Missouri, and there resided until their final separation on November 15, 1930. The evidence further shows that the alleged grounds of divorce occurred in Atchison County, Missouri, while both parties lived in said state, and that after the separation plaintiff remained in the city of Tarkio until her petition for divorce was prepared. It is not shown in the record just when plaintiff took her effects and personal property and went to live at the home of her mother in Springfield, Illinois. The abstract of the record discloses that at the opening of the trial on August 24, 1931, plaintiff testified that she was "living at the present time in Springfield, Illinois."
Plaintiff was partially blind in childhood and for years before she was married was totally blind which fact was, of course, well known to defendant at the time, and long before, he married her. At the time of the marriage he was fifty-five years of age, a farmer and a resident of Tarkio, Atchison County, Missouri.
Nothing was urged, nor point made, about plaintiff's place of residence nor any question raised as to the sufficiency of her petition, in the trial court. Appellant's brief now makes the point that the petition does not state that the plaintiff is a resident of this State, hence the contention is that it states no cause of action and the trial court was without jurisdiction to render a judgment of divorce.
Counsel for defendant, Hon. Lucien J. Eastin, who tried the case, afterward met with a tragic death through the overturning of his automobile, and counsel for defendant in this court did not have anything to do with the case in the trial court. It seems to us that, as a matter of fact, the record is not sufficiently clear and explicit or definite enough to show when plaintiff left the State after the separation, nor whether she left the State permanently with the intention of establishing her domicile in Illinois, even if there be any vital force and effect in the objection and point now made. That this blind woman, although able to make a living in certain occupations, should, when no longer able to live at home with her husband, go to the home of her mother in Illinois and stay there until her divorce action was tried is not sufficient merely in itself to show that she had become a resident of Illinois, especially where the record contains evidence that at the time of and before leaving her husband's home she was contemplating going to St. Louis, Missouri, and finding work there by which to support herself. This illustrates why it is better to raise the objection here considered in the trial court where the question, in its minutest evidential bearings, can be inquired into and fully developed. Of course, if the absence of the entire and ultimate power or jurisdiction of the court to hear and adjudicate the case, appears on the face of the record, then the question may be effectively raised in the Appellate Court for the first time. But not necessarily so under the circumstances of this case.
No doubt Section 1351, R.S. Mo. 1929, 2 Mo. St. Ann., p. 1558, is not jurisdictional in the sense that the court has no power whatever to hear the case regardless of the circumstances. This section merely prescribes the venue. [Nolker v. Nolker, 257 S.W. 798.] The venue may be waived, and it would seem that, if any point could have been made herein, it was waived in this case. [Osmak v. American Car & Fdry. Co., 40 S.W. (2d) 714; Walton v. Walton, 6 S.W. (2d) 1025.]
The petition is sufficient. [
As heretofore stated, there is no showing that plaintiff has changed her domiciliary residence to Illinois. [Humphrey v. Humphrey, 115 Mo. App. 361, 363; State ex rel. v. Davis, 199 Mo. App. 439, 445.]
Plaintiff having lived with defendant in Missouri less than one whole year at the time she was obliged to leave his home in Tarkio, Atchison County, Missouri, properly based her suit on the jurisdictional allegation that the offense and injuries complained of, were committed in this State, and while both of the parties resided therein. [Section 1363 supra; Clark v. Clark, supra.]
It is urged that the evidence is insufficient to justify the trial court in granting plaintiff a divorce. It is true that in a number of cases it is said that divorce is rarely granted on the uncorroborated evidence of one of the parties; that a divorce will not be granted on the evidence of the parties alone, when their evidence is in conflict; that the grounds for a divorce must be established by a preponderance of the evidence and the burden is on the plaintiff to show that she is the innocent and injured party. However, the difficulty is, the evidence in this case is not such as will permit the application of these principles so as to justify the appellate court in reversing the trial court's judgment rendered on the evidence. It is impossible to lay down any hard and fast, or definite, rule applicable to all cases so as to determine what will constitute "indignities" affording grounds for divorce. The term "indignities" in our divorce statute is not capable of exact or precise definition. They must be more than mere light, inconsequential matters irritating though they be, but should be of such continuity, force or moment as to amount to a species of mental or physical cruelty, which would render one definitely and fundamentally unhappy and make his or her condition intolerable; and each case, in this regard, is to be largely determined according to its own peculiar circumstances. [Bassett v. Bassett, 280 S.W. 430, 435, and cases cited.]
With these observations in mind, an analysis of the evidence will readily disclose whether or not the trial court was right in the course taken.
When a child, plaintiff lived in Green City, Missouri, but for sixteen years prior to the date of her wedding she had lived in Springfield, Illinois. The newly-married couple went to live in Tarkio. Defendant's home in that city not being fully in order, owing to repairs being made, they lived at the home of defendant's sister for about two weeks until his home was ready for their occupancy. He owned a farm a few miles out from Tarkio.
Plaintiff, as heretofore stated, was blind, and this must be considered in judging of her situation under the living conditions with which she was surrounded, and the care and attention a...
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