Teel v. Teel

• Decision Date: 07 January 1927
• Citation: 289 S.W. 973,221 Mo.App. 104
• Parties: ORA TEEL, APPELLANT, v. AMY TEEL, RESPONDENT. [*]
• Court: Missouri Court of Appeals

289 S.W. 973

221 Mo.App. 104

ORA TEEL, APPELLANT, v. AMY TEEL, RESPONDENT. ^[*]

Court of Appeals of Missouri

January 7, 1927

Appeal from the Circuit Court of Barry County.--Hon. Chas. L Henson, Judge.

Judgment reversed and remanded. (with directions).

D. H Kemp and D. S. Mayhew for appellant.

(1) Snuffer v. Snuffer, 249 S.W. 673, 213 Mo.App. 311; Revised Statutes 1919, section 1801. For an indignity to be intolerable in the statutory sense, it must amount to a species of mental cruelty. Holschlback v Holschback, 134 Mo.App. 247; Bassett v. Bassett, 280 S.W. 430; 19 C. J. 73, sec. 150; Barth v. Barth, 168 Mo.App. 427; Jones v. Jones, 235 S.W. 481. If a husband or wife has been wronged in such a manner as would warrant a divorce, if he or she voluntarily cohabits with the other party, it is a condonation of the offense. Twyman v. Twyman, 27 Mo. 383; Guthrie v. Guthrie, 26 Mo.App. 566; Wagner v. Wagner, 6 Mo.App. 573; Moore v. Moore, 41 Mo.App. 176. (2) The admissions of a party to a proceeding of divorce are evidence against him or her, but alone they are not sufficient to warrant a decree but must be supported by other evidence. Twyman v. Twyman, 27 Mo. 383; Welch v. Welch, 50 Mo.App. 395. Where in an action for divorce the record discloses that neither party is an injured and innocent party, and that each has offered indignities toward the other, a judgment awarding one of them a divorce will be reversed. Wallner v. Wallner, 167 Mo.App. 677. A divorce is rarely granted on uncorroborated evidence of one of the parties. Howard v. Howard, 276 S.W. 530; Bassett v. Bassett, 280 S.W. 430. (3) Attorney fee taken on a percentage of the amount recovered in divorce proceeding, or depending on the amount of alimony, is against public policy and invalid. 13 C. J., p. 464; Brindley v. Brindley, 121 Ala. 429; Donaldson v. Eaton, 136 Iowa 650, 14 L.R.A. (N. S.) 1168; Newman v. Freitas, 129 Cal. 283, 50 L.R.A. 548; McConnell v. McConnell, 33 L.R.A. (N. S.) 1074, 136 S.W. 931. Alimony is incapable of assignment. Lynde v. Lynde, 58 L.R.A. 471.

H. A. Gardner and J. E. Sater for respondent.

The testimony is sufficient to sustain the judgment. The appellant insists that the testimony does not show indignities. The statute fails to define indignities and the question must therefore be governed largely by the facts in each individual case. O'Hern v. O'Hern, 228 S.W. 536. We respectfully submit that the record in this case shows much stronger case on part of the respondent than the case just cited. Where there is a clear conflict in the testimony, due deference should be had in the finding and judgment of the chancellor who has had better opportunity to observe the demeanor, venom or lack of venom. Bassett v. Bassett, 280 S.W. 437. When the facts and circumtances are such as to satisfy the court of the truth of the evidence and to make out a clear case by his own evidence entitling him to a divorce he should not be denied a decree upon the sole ground that his evidence was not corroborated as to acts charged in the petition. Stone v. Stone, 134 Mo.App. 242. When it becomes apparent that the true aims of the union of a man and woman can no longer be achieved by continuing the marital tie it can hardly be that the interests of society demand that the union be preserved by mere force of law. Barth v. Barth, 154 S.W. 770. Appellant cannot, with good grace, insist that testimony of respondent is not corroborated. When the court, with the sanction of appellant refused to permit the daughter, Erma, to testify in corroboration of the testimony given by the mother. There is no condonation in this case. Wade v. Wade, 229 S.W. 432; O'Neil v. O'Neil, 264 S.W. 61.

BAILEY, J. Cox, P. J., and Bradley, J., concur.

OPINION

BAILEY, J.

Plaintiff filed his petition for divorce from the bonds of matrimony contracted with defendant, returnable to the June term, 1926, of the Barry county circuit court; defendant, in due time, filed her answer and cross-bill. Plaintiff charged in his petition that defendant was hostile to his interests in business matters, refusing to sign papers; that she was quarrelsome, called him vile names in the presence of his children; accused him of being intimate with other women; refused to cohabit with plaintiff and spoke disrespectfully of his mother and relatives.

Defendant, in her cross-bill, after denying the allegations of plaintiff's petition, charged plaintiff with certain indignities, which may be briefly stated as follows: 1st: Possessed an ungovernable temper and constantly without justification was quarreling and nagging at her. 2nd: Falsely stating to her he was financially broke, and if she did not sign whatever papers he presented he would knock hell out of her. 3rd: Cursed and called her vile names. 4th: Plaintiff was addicted to the habitual use of intoxicants and frequently came home drunk and at one time brought their seventeen-year-old-son home with him drunk. 5th: Plaintiff brought into his house a man and wife and plaintiff and his company all became drunk, and plaintiff in the presence of defendant and family, kissed and caressed this drunken woman, and her husband in the presence of plaintiff attempted to kiss this defendant and caress her, and when she protested, she was called a damned fool, etc. 6th: Plaintiff admitted to her he was out with other women. 7th: Ordered defendant to leave and if she did not he would get his gun, and at one time snapped the gun at her. 8th: Plaintiff falsely accused her with being out with other men.

The trial court found defendant to be the injured and innocent party and entered judgment awarding her a divorce and the care and custody of two minor children, girls, while the oldest child, a boy, was awarded to plaintiff. The judgment further required plaintiff to pay $ 30 per month for the support of the minor children and also awarded to defendant alimony in gross, in the sum of $ 5000 and the household goods. From this judgment plaintiff has appealed.

While divorce suits are held to be actions at law rather than suits in equity, nevertheless, it has been the uniform practice in this State to treat them as suits in chancery triable de novo on appeal. [O'Neil v. O'Neil, 264 S.W. 61, l. c. 64.]

It, therefore, becomes our duty, in passing on the question of whether or not defendant was entitled to a decree severing the marital relationship, to set forth the facts as shown by the record rather fully. Plaintiff and defendant were married in November, 1906, in Barry county, Missouri. From this union three children were born, consisting of a son and two daughters, whose ages at the time of the trial were about seventeen, twelve and six years, respectively. They continued to live together until April, 1925, or for a period of approximately nineteen years. Plaintiff was a good provider and defendant evidently a good mother and housewife and it was only during the last few years of their married life that serious trouble arose.

It seems they lived on their farm in Barry county until the year 1919 when they moved to a farm in Lawrence county, owned by plaintiff. Frequently while plaintiff would be away from home, his stock would break out. On this point defendant testified as follows: "Our main trouble was over the stock. For nine years I guess our stock has aggravated our neighbors and there was always someone phoning for us to come and get our stock, and I would raise cain about it and he was always in town and I had to take all the racket there was about it. I had to always go and try to get the stock in, sometimes I could and sometimes I couldn't. It was a continual warfare and every time I would say anything about the neighbors saying anything about the stock he would say that wasn't bothering him. He had a different stock at that time. At one time he had about thirty head of cattle and ten head of hogs and he didn't have the pasture for the stock and that was one reason they broke out. He wouldn't stay at home to look after them, that was all there was to it, and it would be me or Austin one that would have to go get the stock. They have been in the wheat time and time again. Sometimes there would be two neighbors call in one day about the cattle and hogs, and he would say I was a damn liar that they never called or never said a word about it, if they did they would have told him about it. It was almost every day during the summer this occurred, and I would talk and plead with him to fix the fence and he wouldn't, and we would have war every day and the neighbors were awful nice to put up with what they had to." Defendant was corroborated as to the stock breaking out and resulting quarrels by the testimony of her father E. D. Browning. This witness seemed unusually fair to both sides, and we place considerable weight on his testimony. He stated that "I have been there a little over a year. I am not married. While I was out there at their home I never did see Ora mistreat my daughter, no more than just kinda short words. I have seen them both talk short. The best I can get at it, the trouble would come up over some stock a good deal, that seemed to be the bother about that. The stock would get out and it was a complaint to her and a worry about this stock, and of course they would get into a quarrel. She would commence and say that the stock had gotten out. She would tell him the stock was out and they would kinda get riled up about it. She would not begin it all the time. My daughter did not start the subjects all the time. I stayed down at Pierce City at Ora's place. I would be down there with him and I would go out with him at nights once in awhile, and when we would go out she would commence and tell him what had taken place sometimes. She would tell Ora the stock...