Opinion
No. 27920.
July 18, 1950.
APPEAL FROM THE CAPE GIRARDEAU COURT OF COMMON PLEAS, J. HENRY CARUTHERS, J.
R. P. Smith, Cape Girardeau, for appellant.
A. M. Spradling, Jr., and Strom Spradling, all of Cape Girardeau, A. E. Weinstein, Harry U. Scruggs, and Weinstein Scruggs, all of Memphis, Tenn., for respondent.
On July 11, 1949, appellant, as plaintiff, filed in the Cape Girardeau Court of Common Pleas a petition for divorce alleging that he was lawfully married to defendant, Mary M. Bryant, at Atwood, Tennessee, on July 1, 1928, and continued to live with her as her husband from and after said date until April 8, 1948; that at all times he faithfully demeaned himself and discharged all his duties as husband of defendant and at all times treated her with kindness and affection; that defendant did on or about April 8, 1948, wrongfully and without cause desert and abandon plaintiff and has wrongfully and without cause absented herself from plaintiff for the space of more than one whole year next before the filing of this petition; that there was one child born of the marriage, namely, Bobby Lee Bryant, who is now nineteen years of age, employed and self-supporting.
Plaintiff further alleged that he is now a resident of Cape Girardeau County, Missouri, and has resided within the State of Missouri continuously for one whole year next before the filing of his petition. Service on defendant was obtained by publication and when defendant came to Missouri for a hearing on her motion to dismiss plaintiff's petition, personal service on her was also obtained.
Defendant's motion to dismiss plaintiff's petition alleged that at the time of the filing of the petition neither plaintiff nor defendant was a resident of Cape Girardeau County, Missouri, and that plaintiff was not a resident of the State of Missouri one whole year next before the filing of his petition, and that the offense or injury complained of in plaintiff's petition was not committed within the State of Missouri or while one or both of the parties resided within this state.
On October 14, 1949, the court heard the parties and their witnesses on defendant's motion to dismiss, and on October 28, 1949, entered an order sustaining defendant's motion to dismiss plaintiff's petition. In due time plaintiff filed a motion for a new trial which was overruled by the court on November 18, 1949, and on the same date plaintiff duly filed his notice of appeal, appealing to this court.
At the hearing on her motion to dismiss, defendant testified that she and plaintiff resided at 1541 Southern in Memphis, Tennessee; that they had lived there between 7 and 8 years and that plaintiff resided at that address until about a year and a half prior to the date of the hearing, at which time plaintiff moved to the corner of Mill and Second Streets in Memphis, Tennessee; that defendant and her sister, Mrs. Jewell Moore, had on several occasions seen plaintiff going in and out of the address at Mill and Second Streets (also referred to as 537 North Second Street). Defendant further testified that plaintiff called her on the telephone around the later part of February or in the first part of March, 1949, and wanted to know when defendant would give him a divorce; that plaintiff did not at any time tell defendant that he was not a resident of Memphis and had moved to Cape Girardeau; that as late as June 28, 1949, defendant saw him driving in Memphis an automobile which he formerly owned; that she saw him driving the automobile twice or three times a week at Mill and Second Streets in Memphis; that at the time of the separation plaintiff was the owner of a 1941 Ford automobile and this was the car she had seen him driving two or three times a week in Memphis thereafter; that in June 1949, she saw plaintiff in Memphis driving a 1947 automobile bearing Tennessee license plates 59302; that she did not know who owned the 1947 automobile.
Mrs. Jewell Moore, sister of defendant, testified that she accompanied defendant and assisted her in attempting to shadow and follow plaintiff. Mrs. Moore's testimony was approximately the same as that of defendant. On cross examination she testified that plaintiff was a Greyhound Bus driver and that his run brought him to Memphis two or three times a week; that he laid over one day and one night in Memphis on each trip; that plaintiff had never told her that he had moved his residence from Memphis, Tennessee, nor did he ever tell her that his residence continued to remain in Memphis.
Robert Bryant, the son of plaintiff and defendant, testified on behalf of defendant that he was nineteen years old at the time of the hearing and was living at 1541 Southern in Memphis, Tennessee; that so far as he knew his father continued to reside in Memphis until July 1949; that during the past twelve months he had visited with his father in Memphis, Tennessee, and on numerous occasions had met his father at the address on Mill and Second Streets in Memphis; that these visits were arranged between himself and his father by telephone conversations in which a meeting place would be agreed on; that some meetings were on the Court Square in the Memphis business district and some were in the Greyhound Bus Garage, while others were at 537 North Second Street in Memphis; that at the time his mother and father separated they had a 1941 Ford automobile; that since July 15, 1948, he had, with his father's permission, driven said automobile "a lot of times"; that the automobile had Tennessee license plates on it and that sometimes his father would have it parked behind the house at Mill and Second Streets, and at other times near the Greyhound Garage in Memphis; that his father never gave him any address at which he could contact him in Cape Girardeau, Missouri, but that his father did give him a telephone number at which he could contact him at 537 North Second Street, Memphis, Tennessee. The witness recalled that the license number of the 1941 Ford automobile which his father drove was 48532.
On cross examination the witness testified that after his mother and father separated he talked to his father maybe three and four times a week; that his father was driving a bus at that time; that he did not know what run his father had.
C. I. Marsh, General Superintendent of the Dixie Greyhound Bus Lines at Memphis, Tennessee, identified defendant's Exhibits 1, 2, 3, and 4. He stated that he had employed plaintiff as a bus driver in August 1945, at which time plaintiff filled out the usual application for employment for the personnel records of the company; that from July 1948 through July 1949, plaintiff was on the run from Memphis, Tennessee, to Cape Girardeau, with an eleven hour layover in Cape Girardeau and a twenty-four hour layover in Memphis. Defendant's Exhibit No. 1 was a medical examination signed by A. M. Bryant and the Medical Examiner, and gave the address of A. M. Bryant as No. 537 North Second Street, Memphis, Tennessee. It was dated February 18, 1949. Defendant's Exhibit No. 2 showed that plaintiff was granted a leave of absence from July 23, 1949, to September 2, 1949, and was dated July 22, 1949. It gave Bryant's address as Memphis, Tennessee. Defendant's Exhibit No. 3 was a leave of absence dated September 2, 1949, and effective from September 2, 1949, to October 17, 1949. This exhibit also gave Bryant's address as Memphis, Tennessee. Defendant's Exhibit No. 4 was a medical examination signed by A. M. Bryant and the doctor who made the examination. It was excluded by the court as immaterial.
Mr. Marsh further testified that Dixie Greyhound Bus Lines, insofar as its files were concerned, carried plaintiff's address as Memphis, Tennessee, and so far as those files showed plaintiff "never did have any other address"; that the bus company did not require that a driver live at any place on his run; that he did not know which terminus of the Cape Girardeau to Memphis run plaintiff considered his headquarters or his home; that plaintiff was paid and received all communications from the company at the Memphis Greyhound Garage; that before the second leave of absence granted to plaintiff had expired plaintiff "bid in" a run between Clarksdale, Mississippi, and Vicksburg, Mississippi, and that the date he bid in such run was September 17, 1949; that on this run plaintiff spent one night in Clarksdale, Mississippi, and one night in Vicksburg, Mississippi.
John W. McGoldrick, County Clerk for Shelby County, Tennessee, testified that he had the custody and control of the Tennessee State Registration for automobile licenses. He identified defendant's Exhibits Nos. 5, 6, and 7, which were admitted in evidence. Defendant's Exhibit No. 5 was a certificate of automobile registration for the year 1948 in the State of Tennessee. It was dated March 31, 1948, and gave the owner's name as A. M. Bryant, 1541 Southern, Memphis, Tennessee. Written on the face of the document in red ink appears the following: "8/8/48 Mrs. J. H. Hopper 1355 Agnes Pl. Mphs." Defendant's Exhibit No. 6 was a transfer of title from A. M. Bryant to Mrs. J. H. Hopper. The transfer was dated 8/18/48 and gave Bryant's address as 1541 Southwestern, Memphis. Defendant's Exhibit No. 7 was a certificate of automobile registration of the State of Tennessee for 1949 which was dated April 25, 1949, and contains the signature of A. M. Bryant showing that he signed the certificate of automobile registration as agent of Justeen Hopper, the owner of the motor vehicle.
After defendant had completed her introduction of testimony and evidence, plaintiff introduced the deposition of Mrs. Elnora Joy taken on behalf of plaintiff on September 28, 1949, in Memphis, Tennessee. Mrs. Joy testified that she lived at 537 North Second Street in Memphis and had lived there for about eight years prior to the preceding January; that she operated a rooming house at the above mentioned number but kept no records of the renting of her rooms; that prior to July 1948, plaintiff had rented a room at her rooming house and that he had kept his suitcase and clothes there; that about July 1, 1948, plaintiff removed his suitcase and clothes and had told her he was moving; that after that time plaintiff continued to stay in her rooms when he was in Memphis until July 1949; that since then he had not been in her place.
The witness was asked: "You are not trying to testify that Mr. Bryant is a resident of some state other than the State of Tennessee?" and answered, "No."
D. F. Clay, an insurance agent, testified that sometime in July 1948, plaintiff rented a furnished room at his residence on Spanish Street in Cape Girardeau, Missouri; that plaintiff moved in his suitcase and clothes and rented the room by the month for $16.00 per month; that when he was out on the road plaintiff kept his belongings in that room; that plaintiff had no property except his personal property and that soon after renting the room plaintiff had looked at several properties in Cape Girardeau with the witness, stating to the witness that he desired to buy a residence there but had not found any which suited him at a price which he considered reasonable; that when plaintiff learned that the witness had been a candidate for Mayor in April 1948, plaintiff had told him that if the election were to come in 1949, plaintiff would be able to vote for him.
On cross examination Mr. Clay testified that he remembered seeing Mr. Blair, the City Assessor, at the home of the witness in January or February 1949, and that he did not tell the Assessor that Mr. Bryant was living there; that the reason he did not tell the Assessor Bryant was living there was that Bryant had only personal belongings and the witness did not think they were assessable; that he did give to the Assessor the names of other roomers who had furniture there; that since Bryant moved to Mississippi he had paid no rent to the witness and the witness believed that Bryant had two or three suits at his house.
Plaintiff himself testified that on separating from his wife in April 1948, he took up residence at the rooming house of Mrs. Joy on Second Street in Memphis; that in the first part of July 1948, he had moved to Cape Girardeau, Missouri, with the intention of making Cape Girardeau his permanent home; that he had rented a furnished room at the Clay residence and moved his belongings there; that he had investigated the possibility of purchasing a home in Cape Girardeau in August 1948, but had not purchased any property; that he is now working on a bus run between Clarksdale and Vicksburg, Mississippi; that he had not been in Memphis for any purpose or in the State of Tennessee since starting his leave of absence July 23, 1949; that he is at present staying in Clarksdale, Mississippi, but considers Cape Girardeau his home; that he expects to obtain employment on a bus run between Cape Girardeau and St. Louis in the near future, at which time he will return again to Cape Girardeau; that he paid no taxes either in Tennessee or in Missouri in 1948 or 1949; that he did not pay any poll tax in Tennessee and did not vote in either Tennessee or Missouri; that he had not given the information shown in defendant's Exhibit 1 as to his residence and had signed that exhibit before it was filled out; that he had transferred the 1941 Ford automobile to Mrs. Hopper in August 1948, in consideration of more than $600.00 which she had advanced to him; that he had driven this car since the transfer on occasions; that he had registered the 1947 Ford automobile and purchased the license for that car for Mrs. Hopper as her agent; that she furnished the money for the license; that on occasions he had driven this car but was not the owner of it and had paid no part of the purchase price and never made any claim to it.
Plaintiff contends that the record does not support the action of the court in dismissing his petition on the ground that he had not been a resident of the State of Missouri for the period of one whole year next before the filing of the petition.
There is practically no dispute between the parties as to the law involved in this case. They agree that the only question to be determined is the place of plaintiff's residence during the year preceding July 11, 1949. They are, however, in direct conflict with each other as to what the evidence shows in relation to the place of plaintiff's residence during that one year period. Plaintiff contends that he was a resident of Cape Girardeau, Missouri, while defendant claims plaintiff was a resident of Memphis, Tennessee.
The statute, Section 1517, R.S.Mo. 1939, as amended by Laws Mo. 1943, page 398, section 1, Mo.R.S.A. § 1517, is plain and unambiguous. In the part thereof applicable to this case the statute provides: "No person shall be entitled to a divorce from the bonds of matrimony who has not resided within the state one whole year next before the filing of the petition, unless the offense or injury complained of was committed within this state, or whilst one or both of the parties resided within this state." It is settled law that to create a residence in a particular place, two fundamental elements are necessary. These elements are (1) actual bodily presence in the place for some period of time, combined with (2) a freely exercised intention of remaining there permanently or for an indefinite time. Barth v. Barth, Mo.App., 189 S.W.2d 451. In the Barth case, supra, the court, referring to the two elements necessary to show residence said: "Neither bodily presence alone nor intention alone will suffice to create a residence. Both must concur and at the very moment they do concur, a residence is created." Barth v. Barth, supra, 189 S.W.2d loc. cit. 454.
Plaintiff contends that residence is a question of fact controlled by the intention of the party. He cites a number of cases to support this declaration of principle. Among them is Trigg v. Trigg, 226 Mo.App. 284, 41 S.W.2d 583. We find nothing in the Trigg case, supra, nor in any of the other cases cited by plaintiff which holds that residence is wholly "controlled by the intention of the party" as argued by plaintiff. To say that the matter of determining residence is controlled by the intention of the party is not quite an accurate statement of the principle. The intention of the party is a necessary element and does largely control, but it is only one of the elements which goes to show residence as held in the Barth case, supra, and numerous other cases. Intention, either expressed or otherwise shown, alone is not sufficient to show residence. The intention as declared or evidenced by the person under consideration must be combined with evidence showing actual bodily presence in the place declared or claimed to be the residence.
It is true that in the case at bar plaintiff testified that he intended to make Cape Girardeau his place of residence, but we believe that his mere statement to that effect is not sufficient to show residence in Cape Girardeau in view of defendant's evidence which shows acts and conduct on the part of plaintiff wholly inconsistent with the view that Cape Girardeau was his residence during the one year period in question. On the contrary, we think the evidence strongly supports the view that Memphis, Tennessee, was and remained his place of residence for a sufficient length of time to make it impossible for him to have resided in the State of Missouri one whole year next before July 11, 1949, the date of the filing of his petition for divorce in this state.
Plaintiff contends that by his affidavit to his divorce petition and the testimony that he adduced at the hearing he showed that he had changed his residence from Memphis to Cape Girardeau the first part of July 1948, with the intention still existing of making Cape Girardeau his permanent home. He argues that no witness testified positively to the contrary and that his story was corroborated by the landlady at the Memphis address and landlord at the Cape Girardeau address. It is true that no witness testified that plaintiff did not have the intention of making Cape Girardeau his permanent home. The answer to that argument, of course, is that it would not be possible for any witness so to testify. The intention of a person is a mental operation of his own, confined to his own thoughts, and presents a situation concerning which no other person could testify. Furthermore, although it is correct to say that no witness positively testified that the statements made by plaintiff's landlady at the Memphis address and the landlord at the Cape Girardeau address were not true, nevertheless there was much evidence introduced by defendant tending to show that the testimony of plaintiff himself and his witnesses was wholly inconsistent with an intention on his part to make Cape Girardeau his permanent home. A summarized statement of the evidence tending strongly to show that plaintiff was not a resident of Missouri for one whole year prior to the filing of his petition discloses that he kept his automobile in Tennessee; that he did not procure a Missouri driver's license; that he paid no income tax in Missouri and had no bank account in Missouri; that he did not register to vote in Missouri; that he did not notify his employer that he had changed his address from Tennessee to Missouri; that he produced no documents signed by him showing a Missouri residence, whereas the medical examinations signed by him showed his address to be Memphis, Tennessee; that on August 18, 1948, which was less than one year before he filed his divorce petition, he transferred title to his car to Mrs. J. H. Hopper with the Motor Vehicle Registration Department of Tennessee, giving his address then as 1541 Southwestern, Memphis, Tennessee; that on April 25, 1949, acting as agent for Mrs. Hopper in Memphis, Tennessee, he signed his name to an automobile registration document. All of the records produced by plaintiff's employer showed his residence to be Memphis, Tennessee, which was the place of his employment. Also, Memphis had been the residence and domicile of the parties during many years of their marriage.
Although plaintiff saw his son many times in Memphis after he was separated from defendant and had his son visit with him at the Second and Mill Street address, he never at any time told his son that he had changed his residence from Memphis to Cape Girardeau. He never did give his son a Missouri address, but he did give him the telephone number of the Second and Mill Street address in Memphis where the son could reach him if he desired to do so. At the time of the hearing on the motion herein plaintiff was living in Mississippi.
Since this case was tried without a jury, it is the duty of this court to review the entire record as in a suit of an equitable nature. Laws Mo. 1943, Section 114(d) page 388, Mo.R.S.A. § 847.114(d). Under this rule we are required to reach our own independent conclusions on the whole evidence and are not bound by the judgment of the trial court. However, the same statute, Section 114(d), Laws Mo. 1943, supra, also provides that in a case tried without a jury "The judgment shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses."
In this case the trial judge had before him the parties and all their witnesses and evidence. He could observe the demeanor of the parties and their witnesses, and was in a far better position to determine the credibility of the witnesses and the weight to be given to their testimony than any appellate court could on the cold record. The testimony of the witnesses of the respective parties was highly conflicting and, therefore, the weight to be accorded to the testimony of the various witnesses is a matter concerning which, under the statute above mentioned, we should largely defer to the trial court. Reviewing the whole record we see no escape from the conclusion that the trial court entered a correct judgment.
Dissolution of a marriage is a matter of such grave concern, not only to the parties directly involved but also to their children and the public generally, that no court should ever undertake to assume jurisdiction of a divorce case upon doubtful or uncertain evidence concerning the requirements necessary to give it such jurisdiction. We believe the trial court's judgment is amply sustained by competent, substantial evidence and should be affirmed. It is so ordered.
ANDERSON, P. J., and HUGHES, J., concur.