Trumbull v. Trumbull, 31650

• Decision Date: 20 July 1965
• Docket Number: No. 31650,31650
• Citation: 393 S.W.2d 82
• Parties: Earl TRUMBULL, (Plaintiff) Appellant, v. Gertrude TRUMBULL, (Defendant) Respondent.
• Court: Missouri Court of Appeals

Page 82

393 S.W.2d 82

Earl TRUMBULL, (Plaintiff) Appellant, v. Gertrude TRUMBULL, (Defendant) Respondent.

No. 31650.

St. Louis Court of Appeals, Missouri.

July 20, 1965.

Blumenfeld, Abrams & Daniel, H. Jackson Daniel, St. Louis, for appellant.

Frank W. Tomasso, John W. Barry, St. Louis, for respondent.

RUDDY, Judge.

This is an action by plaintiff (appellant) seeking a judgment of partition and sale of a piece of real estate owned by plaintiff and defendant who were husband and wife. Plaintiff relied on a decree of divorce obtained in the State of Nevada to sever the marital tie and contended that the real estate was held by him and defendant as tenants in common. The trial court entered judgment for defendant, thereby holding that the real estate sought to be sold was held by plaintiff and defendant as tenants by the entirety and not as tenants in common. Plaintiff appeals.

The facts, circumstances and proceedings out of which the present action arose had their beginning on August 8, 1961, when the wife, defendant herein, filed an action against the plaintiff herein in the Circuit Court of the City of St. Louis for separate maintenance. On September 18, 1961, plaintiff herein and defendant in the separate maintenance action filed his answer and a cross bill for divorce. In the cross bill for divorce he alleged that he was a resident of the City of St. Louis, State of Missouri and that he had resided in the State of Missouri for a period of one whole year and more next before the filing of his cross bill for divorce. Subsequently, the wife, plaintiff in the maintenance suit, filed a motion for temporary support and maintenance pendente lite and it was sustained. She was allowed $20 per week for each of the two minor children and $20 per week for her own maintenance, plus $150 attorney fees on account and $25 court costs. On March 15, 1962, the petition for separate maintenance and the cross bill of plaintiff herein for divorce were heard and submitted to the trial court. On May 9, 1962, the wife was granted a decree of separate maintenance with custody of the two minor children and plaintiff herein was ordered to pay his wife $20 per week for the support of each of the two minor children and $20 per week for her maintenance, plus an additional $100 as and for attorney fees and plaintiff herein was denied a divorce on his cross bill. On May 18, 1962, the huband, plaintiff herein, filed a motion for new trial in the maintenance action, and on July 2, 1962 his motion for new trial was sustained on the ground that the decree and judgment of the court were contrary to law. The case, consisting of the petition of the wife for separate maintenance and the cross bill of plaintiff herein for divorce, is still pending in the Circuit Court of the City of St. Louis, Missouri.

Shortly after July 2, 1962, plaintiff herein left St. Louis and went directly to Reno, Nevada. Before he left for Reno, Nevada, he was employed by the S. C. Sachs Electric Company. He testified in the instant action that his doctor had advised him 'for the sake of my nerves and arthritic condition' to get away from the situation that was present in St. Louis. He made inquiry at the Union Hall in St. Louis as to where he might obtain work in a drier climate and rather strangely, but somewhat fortuitously for him, he was told by the Union officials to go to Reno, Nevada; that there was work there for the summer months. It seems that he was also told by the Union officials that there was work obtainable in Arizona and Colorado, but for a reason, which will appear later, he sought the judicial climate of Nevada. Immediately upon reaching Reno, Nevada, plaintiff herein contacted John Phillip Vyrne, Business Manager for the Electrical Workers Union in Reno. Plaintiff told Vyrne that he wished to take up residence in the State of Nevada and Vyrne accommodated him by obtaining board and room in a boarding house on Kenstone Avenue in Reno. Shortly thereafter Vyrne was able to place plaintiff in a position with a local electrical contractor. Almost immediately after arriving in Reno, Nevada, plaintiff instituted proceedings there for a divorce. At the hearing for the divorce in Nevada Mr. Vyrne continued his accommodations and appeared as a witness who testified plaintiff actually and physically resided in the State of Nevada from July 24, 1962, up to and including the date of the hearing for divorce.

Plaintiff in his testimony in the instant case said that while in Reno he lived at a rooming house at 1750 Kenstone Avenue and that Margaret Maupin, who was from St. Louis and whom he later married, and her daughter resided at the same rooming house. It seems that plaintiff and Margaret Maupin left the rooming house and moved elsewhere and when plaintiff was asked under what circumstances he and Mrs. Maupin left the rooming house he answered: 'We didn't want to live there any more. Q. Were you requested to leave, you and Mrs. Maupin? A. No.' He said that while in Reno he worked as an electrician and that he obtained his job through the Union office in Reno.

On October 3, 1962, plaintiff herein appeared in the Second Judicial District Court of the State of Nevada in and for the County of Washoe. There he was represented by an attorney. A transcript of the testimony taken at that hearing was introduced in evidence in the present case. This transcript of the proceedings of that day shows that the defendant (wife) in said divorce proceeding and defendant in the instant case did not appear 'in this action.' Thereafter, the court dictated into the record the following: 'Miss Clerk, you may enter the default of the defendant for failure to appear and plead, after being personally served outside the State of Nevada.' At this point we interpolate the information that the wife was served with a copy of the summons and complaint by registered mail. She filed no answer in the proceedings and did not contest the proceedings in any respect. In the divorce proceedings in Nevada plaintiff testified that he took up his residence in the State of Nevada on July 24, 1962, at 1750 Kenstone Avenue and that he moved from the Kenstone Avenue address to 5430 South Virginia, Reno, Nevada, and that he resided in Nevada 'about six weeks.'

In the divorce proceedings the following questions were asked and answers given: 'Q. And from the 24th day of July, 1962 up to and including the present date have you been actually physically present in the State of Nevada during all of that period of time? A. Yes I have. * * * Q. When you came to the state of Nevada was it your intention to make this state your home for an indefinite period of time? A. Yes. Q. Has that intention remained with you during all of the time that you have resided here in the state of Nevada? A. Yes, it has. Q. Is that your present intention? A. Yes, it is.' He further testified that he had been employed as an electrician in Washoe County, Nevada, since shortly after his arrival in Reno. He testified that he was married to the defendant in St. Louis, Missouri, on July 21, 1943, and that there were three children born of the marriage; that two of the children, daughters, were with the mother and that the son, Terry, was residing with him in Reno and was present in the courtroom at the time of the hearing. We will omit the testimony supporting his grounds, contained in his petition for divorce. A certified copy of the 'Findings of Fact, Conclusions of Law and Decree of Divorce' were in evidence in the instant case. In there is a finding by the court that the plaintiff appeared personally and by his attorney 'and it appearing that the defendant had been served with a copy of the Summons and Complaint on the 10th day of September, 1962, and her default having been regularly entered,' thereafter, the court found that the allegations of the complaint were true and that plaintiff was entitled to an absolute and final decree of divorce from defendant upon the ground of defendant's cruelty to plaintiff. Thereafter, the court ordered, adjudged and decreed a divorce and granted custody of Terry, the son, to plaintiff and the court in its judgment made no determination with reference to the custody of the two minor daughters stating, 'because the children are not within the jurisdiction of the court and the defendant has failed to make an appearance.' However, the court in the Nevada divorce proceedings ordered the plaintiff to pay to the defendant wife the sum of $50 per month per child for the support and maintenance of the two minor daughters.

In the instant (partition) action plaintiff was asked the following questions and gave the following answers concerning his testimony in the Nevada divorce proceedings: 'Q. While you were in Reno at this trial did you disclose to them anything about a case pending in St. Louis that you recall? A. To my lawyer. Q. To your lawyer or to the Court? A. I did. Q. Who did you till it, to the court or to the lawyer? A. Both.' An examination of the transcript of the testimony of plaintiff taken in the Nevada divorce proceedings shows that he made no disclosure to the court about the pending separate maintenance suit of his wife and the cross bill for divorce that he had filed in the maintenance action. The day following the entry of plaintiff's decree of divorce in Nevada, he married Margaret Maupin in Reno, Nevada. When asked 'Where does she (Margaret Maupin) originate from?' he answered, 'From St. Louis.' He denied that the two of them went to Reno together but admitted they both lived in the same rooming house.

In the instant proceeding plaintiff further testified that he left Reno, Nevada, on the 10th of October, 1962, and that he and his boy (and we suspect his newly acquired wife) took a tour through the Grand Canyon and parts of California, explaining 'we took a round about trip back, to enjoy a little scenery.' He denied that he was in St. Louis on October 7, 1962. While he said...