Trigg v. Trigg

• Decision Date: 06 April 1931
• Parties: OTTO BLAINE TRIGG, RESPONDENT, v. MARIE BURIN TRIGG, APPELLANT
• Court: Kansas Court of Appeals

41 S.W.2d 583

226 Mo.App. 284

OTTO BLAINE TRIGG, RESPONDENT, v. MARIE BURIN TRIGG, APPELLANT

Court of Appeals of Missouri, Kansas City

April 6, 1931

Appeal from Circuit Court of Jackson County.--Hon. Thos. J. Seehorn Judge.

AFFIRMED.

Judgment affirmed.

Chas P. Woodbury and McCune, Caldwell & Downing for respondent.

Oliver Debble and Atwood, Wickersham, Hill & Chilcott for appellant.

BOYER C. Campbell, C., concurs. Trimble, P. J., absent.

OPINION

BOYER, C.

--Action for divorce. Plaintiff instituted this suit in the circuit court of Jackson county, Missouri, at Kansas City. The petition made the proper allegation of residence of plaintiff in said county and state for the period required to confer jurisdiction. The grounds of divorce are "such indignities as to render his condition intolerable," and are set forth in this manner:

"That defendant habitually and without reason indulged in frequent and violent outbursts of temper when she would direct abusive, malicious and distorted remarks and statements to the plaintiff, in private and in the presence of friends and in public so that the plaintiff was greatly embarrassed and humiliated in the presence of friends and in public.

"That without reason but incited by jealousy and envy the defendant would direct abusive, malicious remarks, statements and accusations to friends and acquaintances about the plaintiff and about their friends and acquaintances to such an extent that their friends and acquaintances were alienated and estranged and plaintiff was thereby greatly humiliated and embarrassed.

"That by reason of the above facts plaintiff's happiness in home life was destroyed and he was prevented from associating with his friends and acquaintances in the way and manner and on the basis to which his position entitled him."

Service was had upon defendant by publication. She appeared first for the purpose of presenting a plea to the jurisdiction in which she alleged that "plaintiff has not actually resided in the State of Missouri for one whole year next preceding the filing of his petition," and that all the grounds alleged occurred, if at all, while plaintiff and defendant were husband and wife living in the State of California. Evidence was heard and the plea to the jurisdiction was overruled. Defendant was given time to plead further which she did by way of answer containing the same plea to the jurisdiction together with a general denial of all allegations except that of the marriage of the parties. Plaintiff was required to finance the defense of his case to the extent of furnishing suit money to defray the expense of obtaining depositions in California and the transportation of defendant from California to Kansas City and return.

At the time the case came on for hearing plaintiff was an army officer stationed at the Presidio at Monterey, California, and it appears that as a matter of convenience the court heard and received plaintiff's oral testimony when the first plea to the jurisdiction was presented and heard; that the further hearing of evidence was continued for a sufficient time to afford defendant opportunity to present her proof. After hearing all the evidence presented by the parties and requested by the court, a decree was entered in which it was found that plaintiff was the innocent and injured party and entitled to the relief prayed. The bonds of matrimony contracted between plaintiff and defendant were dissolved. An appeal was duly allowed and taken by defendant, and the court, upon her further application, allowed her attorney fees and maintenance pending disposition of the case on appeal. For reversal of the decree appellant urges three reasons: (1) That the court had no jurisdiction; (2) that the petition fails to state a cause of action, and (3) there was a total failure of proof which would entitle plaintiff to a decree.

The jurisdictional issue in this case depends entirely upon the question of fact as to whether plaintiff in legal contemplation had "resided within the State one whole year next before filing of the petition." We will state the substance of the pertinent evidence. The parental home of plaintiff was in Kansas City. Here he was reared, educated, lived, and was employed after his college education until his employer sent him to San Francisco where he met and married defendant in 1914. He furnished an apartment and lived there with his wife until he entered the army as a commissioned officer in March, 1917. He voted in San Francisco in 1916, but at no other time or place exercised the right. Shortly after plaintiff secured his commission in the army he was ordered to Fort Leavenworth, Kansas. He stored his furniture in San Francisco and while he was in training at Fort Leavenworth for a period of three months his wife lived with his parents at 3316 Flora Avenue, Kansas City, Missouri, which place was claimed by plaintiff as his residence ever since. From Fort Leavenworth plaintiff was ordered to Fort Sam Houston and thence to France, where he remained for a period of twenty months. His wife accompanied him to Fort Sam Houston where she remained a brief period after his departure and then went to San Francisco for a few weeks, and thereafter lived in army quarters at the Presidio in San Francisco. During the war she received her mail and allowance at the Presidio by way of the Texas fort. Upon plaintiff's return he was ordered to Fort Ethan Allen, Vermont, where his wife joined him with their furniture from San Francisco. He remained there two years, and in 1921 he was ordered to Fort Riley, Kansas, where he and his wife lived at that army post until 1926 when plaintiff was ordered to the Presidio in Monterey, California, at which latter place plaintiff and defendant lived in army quarters until their separation in August, 1929.

Plaintiff came to Kansas City about the first of October of the same year and instituted this suit. A part of his evidence was received in the following January, and he testified in effect that he and his wife established a home and residence in Kansas City, Missouri, thirteen years previously, it being the time when he was transferred to Fort Leavenworth, Kansas. That the home so established was with his parents at 3316 Flora Avenue; that he never maintained a residence elsewhere since that time and never intended to; that he and his wife lived at the address given in Kansas City during his stay at Fort Leavenworth, and that while he and his wife lived at various army posts since that time he never established a residence elsewhere than in Kansas City; that during his absence in the World War his wife lived for awhile in Kansas City and thereafter at army posts. Plaintiff's application for War Risk insurance gave his home address as 3316 Flora Avenue, Kansas City, Missouri; named his wife as beneficiary, and gave her address the same as his own. He further testified that he had not ceased to maintain a home in Kansas City; that since his return from overseas he had been in Kansas City numerous times; that his room, furniture, and belongings were maintained at the residence number given, and that he has always looked to Kansas City as his permanent residence; that he has never claimed a home elsewhere since joining the army. Plaintiff was corroborated by his father as to the time and place of his residence in Kansas City and by two other resident witnesses of Kansas City that during and since the time of his service in the army he always claimed Kansas City as his home. Until October, 1929, he had not been in Kansas City for three years, but had been stationed on duty at the army post at Monterey.

Defendant's testimony is to the effect that she and her husband never had a home in Kansas City and never resided at that place, but she did admit that during the time of her husband's stay at Fort Leavenworth she "visited his people here in Kansas City, Missouri, those three months." "His people" referred to by defendant were the father and mother of plaintiff and their home was the address claimed as the residence of plaintiff. The testimony of defendant, together with that of her sister, tends to show various expressions indicating plaintiff's desire to live in California, and his intention to make that his permanent residence when he retired from the army; that he was very fond of California, desired to be transferred there, and partly thru the influence of his wife obtained a transfer to the army post in that State. There is no evidence that plaintiff and his wife at any time since his entrance into the army had or maintained a residence, or had a home, at any place other than the place named in Kansas City, except their living quarters provided for them at the various army posts at which plaintiff was stationed.

The evidence on the merits of the case is voluminous. The substance of all the proof upon the more important and decisive issues will be summarized. Plaintiff appeared in person before the court, as well as defendant and one of her sisters. The court also heard plaintiff's father and two other witnesses from Kansas City testify orally. The evidence of numerous witnesses was furnished by deposition.

Plaintiff testified to a series of indignities extending over a period of years in which he had repeatedly suffered public humiliation on account of unprovoked verbal assaults of abuse, profanity, and incriminating accusations by his wife and arising from her unrestrained temper, emotion, jealousy, and imagination. His evidence also shows that her unfounded accusations, comments, and statements were leveled not only at him, but at other people of their acquaintance and threatened to involve plaintiff in serious difficulty with his associate and superior officers; that his domestic life...