Whitwell v. Whitwell
| Decision Date | 07 December 1927 |
| Docket Number | 25563 |
| Citation | 300 S.W. 455,318 Mo. 476 |
| Parties | Pleasant A. Whitwell v. Fidella M. Whitwell, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jasper Circuit Court; Hon. Howard Gray, Special Judge.
Affirmed.
C H. Montgomery for appellant.
(1) There was no abandonment on the part of defendant. She was sick and afflicted and was driven from home by the intolerable treatment of plaintiff. Gillinwater v Gillinwater, 28 Mo. 60; Sutermeister v Sutermeister, 209 S.W. 955. (2) The defendant did not abandon plaintiff, she went away with the full consent of plaintiff. He bought her tickets, and furnished her money so she could remain away. She was sick and nervous and at times not accountable for her acts. Bethel v. Bethel, 181 Mo.App. 602; Droege v. Droege, 55 Mo.App. 482; Hoffman v. Hoffman, 43 Mo. 547. (3) It is very doubtful whether the petition in this case states a cause of action. Abandonment charges are mingled with indignities and are only a part of the indignities. Delaney v. Delaney, 245 S.W. 1076. (4) Neither the husband nor wife can make a separation which was begun and prolonged by their common act and consent, and which neither has ever made any effort to terminate, a ground of complaint from the other. Gilmer v. Gilmer, 37 Mo.App. 672; Dwyer v. Dwyer, 16 Mo.App. 427. (5) "A man by a course bordering on cruelty, yet keeping barely inside the dividing line of the statutory cause of divorce, may impel his wife to seek peace and health by fleeing from his home, and then get rid of her entirely by alleging her desertion." Neff v. Neff, 20 Mo.App. 192; Doyle v. Doyle, 26 Mo. 548. (6) Defendant was entitled to an adequate attorney's fee to prosecute her appeal in this court. State ex rel. Kranke v. Calhoun, 232 S.W. 1038. The court allowed her $ 50 a month for her support, but nothing for attorney's fees, copy of evidence or printing bills. A reasonable attorney's fee in this case would be from $ 500 to $ 1,000. Zerega v. Zerega, 200 S.W. 700; Howey v. Howey, 276 S.W. 85. (7) There is really no conflict in the testimony. The decision rests upon questions of law. It is the duty of the court to review the evidence and make such finding as is proper. Ellenbrecht v. Ellenbrecht, 243 S.W. 209; O'Neil v. O'Neil, 264 S.W. 61; Spitzbarth v. Spitzbarth, 260 S.W. 785. (8) The appeal brings up the whole case, including the action of the court in not allowing attorney's fees. Scholl v. Scholl, 194 Mo.App. 564.
Norman A. Cox and Hugh Dabbs for respondent.
(1) Appellant did not take an appeal from the order of the trial court relating to her motion for temporary alimony, suit money and attorney fees pending appeal. There is, therefore, no question here on appeal except appellant's assignment -- "that the court erred in granting respondent (plaintiff below) a divorce on the evidence in this case." Arnold v. Arnold, 220 S.W. 1002; State ex rel. Gercke v. Sedden, 93 Mo. 523; Smith v. Smith, 192 Mo.App. 104; State ex rel. v. Calhoun, 206 Mo.App. 298. (2) If appellant had duly taken an appeal from the order of the trial court on her motion for alimony and suit money pending appeal, which she did not, and had the action of the court been as contended in appellant's brief, the court in ruling on the motion for such alimony and suit money did not commit any error, in that the court allowed her $ 50 a month for support, and the admitted evidence showed she had means of her own, amounting to something over $ 8,000, and that prior to the divorce suit and at the time of the trial thereof she was living with her daughter in New Mexico and that respondent was paying the household and all other expenses. Under these facts, such allowance for attorney fees and expense of printing brief and abstract was in the discretion of the trial judge, and it was the trial judge's duty not to make any further allowance for the appellant as she had ample means of her own to defray the expenses in the case. Smith v. Smith, 192 Mo.App. 105; Penningroth v. Penningroth, 71 Mo.App. 441; Lambert v. Lambert, 109 Mo.App. 19; Rutledge v. Rutledge, 177 Mo.App. 469; Arnold v. Arnold, 222 S.W. 1001. (3) The petition states a cause of action. Nolker v. Nolker, 257 S.W. 798. (4) While a divorce suit is a lawsuit, on an appeal where the evidence is conflicting, this court, as in an equity case, defers to the decision of the trial court. An examination of the evidence will show that it not particularly necessary to invoke this rule here, as the entire record shows that the trial court was right in finding the issues for the plaintiff below. Reynolds v. Reynolds, 297 Mo. 447; Cherry v. Cherry, 258 Mo. 403. (5) Every element of abandonment is proved by overwhelming evidence according to the last decision of Court en Banc defining this ground for divorce. The record also shows that respondent was entitled to a divorce on the indignities alleged in his petition. Nolker v. Nolker, 257 S.W. 803; Nielson v. Nielson, 282 Mo. 412; Wade v. Wade, 229 S.W. 432; O'Neil v. O'Neil, 264 S.W. 61. (6) The contention of appellant that she should not be held liable for her matrimonial offenses of abandonment and indignities charged in plaintiff's petition, on the ground that she was nervous and sick to such an extent that she did not know and was not accountable for what she did, has no basis in law or fact. There is no evidence to support this claim, but all the evidence, including defendant's admissions, proves the contrary. The law on this question is, that in order to excuse her from these charges her mental condition at the time of the charge of abandonment and indignities, must have been such as to deprive her of the use of her reason to the extent that she did not know right from wrong and was unaccountable for her acts. Bethel v. Bethel, 181 Mo. 602; 9 R. C. L. sec. 99; 19 C. J. 76, 77, sec. 170; Hill v. Hill, 27 N.J.Eq. 214.
This case comes to the writer by reassignment. In March, 1923, respondent, who was plaintiff below, filed suit for divorce against his wife, appellant herein, alleging abandonment and indignities. The wife filed answer and cross-bill, praying to be divorced from respondent on the ground of indignities, and asking for alimony in the sum of $ 37,500. On May 30, 1923, the court entered judgment and decree for plaintiff and against defendant, the record of which, among other things, recites that Prior to the rendition of this judgment, the defendant, on motion, was allowed fifty dollars a month temporary alimony while suit was pending in the circuit court.
Appellant's affidavit for appeal was made and filed May 30, 1923. On June 2, 1923, appellant filed her motion for temporary alimony and suit money pending the appeal, which was sustained to the extent that she was allowed the sum of fifty dollars a month for her support to be paid on the first day of each month thereafter until the final disposition of the cause. Thereafter on the same day the trial court examined appellant's affidavit for appeal, deemed it sufficient, and appeal was granted to the Springfield Court of Appeals. Some time later on motion of appellant the cause was transferred on the ground that the amount involved conferred jurisdiction on the Supreme Court. Defendant claimed alimony, as above stated, in the sum of $ 37,500, and at the trial plaintiff admitted that he was worth about $ 75,000, his property consisting of farm lands, city business and residence properties, Government bonds, cash and other personal property, so our jurisdiction to hear this appeal is apparent on the face of the record. [Cherry v. Cherry, 150 Mo.App. 414; Vordick v. Vordick, 281 Mo. 279.]
Counsel for appellant abandons her cross-bill and demand for permanent alimony in a brief filed in this court and stands on her answer, which, aside from certain formal admissions and an allegation that plaintiff abandoned her, is in the nature of a general denial. The only questions thus presented by this appeal are, was plaintiff entitled to a divorce upon the petition and evidence, and, was appellant's motion for an allowance for suit money, cost of obtaining transcript of the evidence, printing abstract and brief, attorney's fees, and her living expenses pending this appeal, properly ruled?
Respondent has filed a motion to dismiss the appeal, first, on the ground that appellant's abstract of the record is so incomplete that it fails to comply with the requirement of our Rule 13, and second, on the ground that appellant has not made a fair and concise statement of the facts as required by Section 1511, Revised Statutes 1919, and our Rule 15. Measured by the issues originally framed appellant has undoubtedly offended in both particulars, but in view of her subsequent abandonment of her cross-bill and contention for permanent alimony we are not inclined to dismiss the appeal and the motion to dismiss is overruled.
As to the right of the wife to alimony pending an action for divorce, it is no longer fegarded as absolute. Such an order is largely within the discretion of the trial judge. [State ex rel. Gercke v. Seddon, 93 Mo. 520.] According to the statute it should be allowed...
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Rickard v. Rickard, 8723
...the value of the husband's property 'is largely in excess of (the) $50,000' gross alimony demanded by the wife, or to Whitwell v. Whitwell, 318 Mo. 476, 300 S.W. 455, in which the wife asked gross alimony of $37,500 and her husband admitted he was worth $75,000. Also see: Reynolds v. Reynol......