Wyrick v. Wyrick

• Decision Date: 26 March 1912
• Parties: CLARA F. WYRICK, Respondent, v. DOUGLAS J. WYRICK, Appellant
• Court: Missouri Court of Appeals

145 S.W. 144

162 Mo.App. 723

CLARA F. WYRICK, Respondent, v. DOUGLAS J. WYRICK, Appellant

Court of Appeals of Missouri, Springfield

March 26, 1912

Appeal from Wright Circuit Court.--Hon. C. H. Skinker, Judge.

AFFIRMED.

Judgment affirmed.

E. H Farnsworth and Lamar, Lamar and Lamar for appellant.

(1) The word "residence" within the meaning of the statute providing for the venue of actions means a permanent and fixed home and is synonymous with the word "domicile," Humphrey v. Humphrey, 115 Mo.App. 363; Hamill v. Talbot, 81 Mo.App. 216; State ex rel v. Shepherd, 218 Mo. 666; Green v. Beckwith, 38 Mo. 384; Crenshaw v. Insurance Co., 71 Mo.App. 42; McDowell v. Friedman, 135 Mo.App. 287; Lagerholm v. Lagerholm, 133 Mo.App. 306; Railroad v Monell, 110 S.W. 506; Railroad v. Cloyd, 78 S.W. 43; Railroad v. Elder, 99 S.W. 856. (2) Mere physical presence or staying at a place does not constitute residence or domicile. State ex rel. v. Dayton, 77 Mo. 678; Shirk v. Shirk, 75 Mo.App. 583. (3) The residence or domicile of the husband is the residence or domicile of the wife. The wife's domicile merges in that of the husband. Schouler's Domestic Relations (2 Ed.), sec. 37; State ex rel. v. Wirdeman, 129 Mo.App. 277; McPherson v. McPherson, 70 Mo.App. 330; Comerford v. Coulter, 82 Mo.App. 362; King v. King, 64 Mo.App. 301; Mowser v. Mowser, 87 Mo. 437. (4) This is true although the husband and wife may be living apart. Harrison v. Harrison, 56 Am. Dec. 227; Farris v. Sipex, 41 S.W. 443; Anderson v. Watt, 138 U.S. 706, 34 L.Ed. 1082; Cheely v. Clayton, 110 U.S. 705, 28 L.Ed. 298; Loker v. Jerrold, 157 Mass. 42, 34 Am. St. 252. (5) When a residence has been established in one place such residence continues until another has been acquired. Plaintiff alleges marriage with defendant and when she established a residence with him in Douglas county at his home and residence, it became her home and residence also and continued to be such until another should be established. DeMeli v. DeMeli, 120 N.Y. 485, 17 Am. St. 652; Duxstad v. Duxstad, 17 Wym. 411, 100 P. 112, 129 Am. St. 1138; Ayer v. Weeks, 65 N.H. 248, 23 Am. St. 37; People v. Moir, 207 Ill. 180, 69 N.E. 905, 99 Am. St. 205. (6) To constitute "abandonment" within the meaning of the law, where the wife leaves the husband, as in this case, the conduct of the husband must be such as to entitle the wife to a divorce. This record not only fails to disclose such facts but the testimony shows to the contrary; that the wife refused to remain at home of the defendant because it was isolated and she was lonely. She had been accustomed to living in the city and refused to live on the ranch. Droeger v. Droeger, 52 Mo.App. 84; McGrady v. McGrady, 48 Mo.App. 668; Polsten v. Polsten, 145 Mo.App. 606; Heyman v. Heyman, 104 N.Y.S. 667. (7) Under the modern rule alimony pendente lite is a matter of necessity. If the woman has property or means to carry on the litigation, alimony pendente lite will not be allowed. Stark v. Stark, 115 Mo. 440; Peningworth v. Peningworth, 71 Mo.App. 441; Lambert v. Lambert, 109 Mo.App. 21; Hedrick v. Hedrick, 138 S.W. 678. (8) In actions of this nature, unless the marriage relation is admitted or found by the court to exist from the evidence, there it no power to award temporary alimony. Pain v. Pain, 37 Mo.App. 110; McKenna v. McKenna, 70 Ill. 340; Hite v. Hite, 57 P. 227, 124 Cal. 389, 71 Am. St. 82; Reed v. Reed, 37 So. 642, 85 Miss. 126; In re Graham, 46 A. 224. (9) Where a marriage is void by reason of one of the parties having a spouse living, there can be no ratification of such marriage and neither of the parties can by any act become estopped to deny its existence. 26 Cyc. 867; Pain v. Pain, 27 Mo.App. 110; Snuffer v. Carr, 197 Mo. 191; Cartwright v. McGowen, 121 Ill. 288, 2 Am. St. 105.

A. M. Curtis and Chas. W. Evans for respondent.

(1) Unquestionably the common law rule was that the domicile of the husband was the domicile of the wife, and this is the general rule followed by the courts to-day in matters other than for divorce or separate maintenance. While it has not been decided in this state whether or not a wife may establish a separate domicile from that of her husband for the purpose of maintaining an action for separate maintenance, it has been so decided in other jurisdictions and is the generally accepted rule. 14 Cyc. 848; Watertown v. Greaves, 112 F. 183; Moffatt v. Moffatt, 5 Cal. 280; Shute v. Sargent, 67 N.H. 305; Shaw v. Shaw, 98 Mass. 158; Lyon v. Lyon, 30 Hun (N. Y.) 455; Arrington v. Arrington, 102 N.C. 490; Rundle v. Inwegan, 9 N. Y. Civ. Proc. 328. (2) In this state a wife may establish a separate residence or domicile for purpose of fixing venue for a divorce action. Pate v. Pate, 6 Mo.App. 52; Coulter v. Coulter, 124 Mo.App. 155; 14 Cyc. 584, 585, 592; Gilmer v. Gilmer, 32 Ga. 685; Johnson v. Johnson, 12 Bush. (Ky.) 485; Vence v. Vence, 15 Howard (N. Y.) 497; Cain v. Cain, 5 Lanc. L. Rev. 373; Walton v. Walton, 96 Tenn. 25; Jones v. Jones, 60 Texas, 451. (3) The domicile of a person is the place in which such person has voluntarily fixed his abode not for a temporary purpose, but with the present intention of making it his permanent home. 14 Cyc. 833; State ex rel. v. Smith, 64 Mo.App. 313; Shirk v. Shirk, 75 Mo.App. 573; Adams v. Abernathy, 37 Mo. 196; Green v. Beckwith, 38 Mo. 384; Johnson v. Smith, 43 Mo. 499; Humphrey v. Humphrey, 115 Mo.App. 361; Stevens v. Larwill, 110 Mo.App. 140; State v. Snyder, 182 Mo. 462; McDowell v. Shoe Co., 135 Mo.App. 276. (4) Where a de facto marriage relation exists, the question as to the validity of the marriage is not a question to be determined in passing on a motion for temporary alimony, and the circuit court has the power to grant alimony pendente lite upon the showing of a de facto marriage, regardless of the validity of said marriage. Long v. Long, 78 Mo.App. 32; Behrle v. Behrle, 120 Mo.App. 677. (5) The offer upon defendant's part to take plaintiff back into his home as his wife and her refusal to accept the same is not a bar to this action or to the granting of alimony pendente lite, when such offer is not made in good faith and the wife cannot reasonably expect the husband to keep his promises. 21 Cyc. 1602; Spengler v. Spengler, 38 Mo.App. 266; Lindenschmidt v. Lindenschmidt, 29 Mo.App. 295; Elliott v. Elliott, 48 N.J.Eq. 231; Briggs v. Briggs, 24 S.C. 377.

OPINION

NIXON, P. J.

This was an action by the plaintiff under the statute for maintenance. On her motion the circuit court allowed plaintiff temporary alimony in the sum of $ 150, and from this action of the court the defendant appealed.

The petition alleges that plaintiff and defendant were married on the 29th day of March, 1911, in the state of Iowa, and that plaintiff lived with defendant as his wife until the 11th day of April, 1911; that during all that time plaintiff faithfully demeaned herself and discharged all her duties as the wife of the defendant and at all times treated him with kindness and affection; that she has her home and residence in Wright county in the state of Missouri; that on April 11, 1911, defendant, wholly disregarding his duties as the husband of the plaintiff, did, without good cause, abandon the plaintiff in Wright county in the state of Missouri, and has ever since refused, failed and neglected to maintain and provide for her. "Plaintiff further alleges that shortly after said marriage the defendant began a system of such cruel and barbarous treatment as to endanger the life of the plaintiff and offered to her such indignities as rendered her condition intolerable; among other indignities and cruel acts he was continually cursing and abusing the plaintiff and using vile, obscene and profane language, and trying to drive her away from his home; that he slept with a pistol and a bottle of whiskey under his pillow or near the bed occupied by petitioner and defendant every night terrified the plaintiff. That the defendant is a man of extreme passions, and although he knew the plaintiff was not physically strong he was insisting upon the plaintiff satisfying his brutal sexual passions until within a few days after said marriage she was a physical wreck; that in order to gratify his passions he forced the plaintiff to swallow whiskey, and otherwise enforced brutal treatment upon her." The prayer is that an order and decree be entered that defendant pay her for her support and maintenance the sum of seventy-five dollars monthly and that defendant be compelled to give security for such maintenance and that defendant be required to pay alimony and attorneys' fees pending this proceeding.

The defendant in his answer alleges want of jurisdiction "for the reason that the plaintiff at the time of bringing said suit was not a resident of Wright county, Missouri, and this defendant was, at said time, and at the time of service or process on him herein, a resident of Douglas county, Missouri, and for the reason that at the time said suit was brought and at all times since said date both the plaintiff and the defendant were non-residents of Wright county, Missouri, and neither of said parties resided within said county, and because defendant says that no status of marriage ever existed between plaintiff and defendant in said Wright county, Missouri." The answer also sets up a general denial, and a plea that plaintiff at the time of her marriage to the defendant was the lawful wife of one John Graham Adair.

Plaintiff filed the following motion for temporary alimony (formal parts omitted): "Now comes the plaintiff and represents to the court that she has commenced in this court an action against this defendant, her husband for support and maintenance, alleging among other things that this defendant had without cause...