Opinion
No. 21565.
April 2, 1951.
APPEAL FROM THE CIRCUIT COURT, BOONE COUNTY, W. M. DINWIDDIE, J.
Harry T. Limerick. Jr., William Bran decker, Columbia, for appellant.
Don C. Carter, Sturgeon, for respondent.
Charles Singleton sued Reta Singleton for divorce. Defendant filed general denial and cross-bill. Judgment was for plaintiff on his petition, and for plaintiff against defendant on her cross-bill. Defendant appeals.
Petition was filed January 28, 1950. Plaintiff alleged that he and defendant were married November 2, 1938, but that defendant had refused to live with him as his wife since August 7, 1948, and alleged indignities as grounds for divorce, said indignities being: (a) defendant had deserted plaintiff and refused to live with him; (b) defendant is argumentative and sarcastic in her relations with him.
Defendant, in her answer, denied that she had refused to live with plaintiff as his wife since August 7, 1948, alleging that she and plaintiff had agreed to remove to the state of Washington; that she went to that state, in accordance with their agreement, and that plaintiff failed to come after she left.
In her cross-bill defendant alleged that plaintiff had an ungovernable temper and treated her with such indignities as to render her condition in life intolerable. She prayed for a decree of divorce, for support and maintenance, for an adjudication of their property rights, and for judgment against plaintiff thereon.
Plaintiff testified to the effect that both he and defendant had been previously married; that defendant had three children by such previous marriage and plaintiff had one; that all of said children are mature; that no children were born of this marriage; that the marriage was one of convenience; that each had real estate and other property; that each kept and maintained such property, separate and apart from the other; that when they were married defendant stated that she would live with him for five years, that five years was long enough for a woman to live with a man; that at the end of the first five years she said she would continue to live with him but would continue to live with him but would not promise how long she would live with him; that when they were married she owned an 80 acre farm upon which they lived, and a 40 acre farm which was also improved, and that he owned an 80 acre farm, later sold; that defendant, in 1944, bought her father's farm of 80 acres; that plaintiff loaned her $2,000 at that time; that, thereafter, on April 15, 1944, they entered into a post-nuptial contract, not in contemplation of divorce or of living separately, whereby it was agreed that each should own, control and sell his or her individually owned real and personal property as though each were single, without the other joining and, in event either died, the other would make no claim of any kind on the estate of deceased but all would descend to his or her children, or in accordance with his or her will.
He testified to the effect that, on October 28, 1944, plaintiff purchased from defendant the 80 acre farm and the 40 acre farm, for the sum of $6,000. Defendant, however, contended that he paid her $4,000 and agreed to modernize the house, that defendant seeks a determination of property rights and a judgment thereon. We will dispose of that question at this point. In a divorce action, the court is without jurisdiction to adjudicate property rights as between the parties, Bishop v. Bishop, Mo.App., 151 S.W.2d 553, 556; nor can such a petition be intermingled with a petition for divorce, as is here attempted. State ex rel. George v. Mitchell, Mo.App., 230 S.W.2d 116, 121.
Plaintiff testified to the effect that defendant was not affectionate, and was argumentative and sarcastic in her treatment of him. His testimony in this respect was not specific and not very clear. He stated that, in the spring of 1948, he sold the farm upon which they lived, and had no place to store or keep their personal property; that they sold, at public sale, all property owned by each of them, including household goods; that they rented a furnished house in Columbia and lived there for a time; that one of defendant's sons was in Columbia and had purchased a trailer which he intended to take to the state of Washington; that defendant slept in the trailer a part of the time during that summer, and a part of the time she slept in the house, on the floor; that plaintiff slept in the house; that he never agreed to go to Washington, where he had a son living, and never consented that defendant should go; that he would rather she had not gone; that several days before she left, after he had obtained possession of the 40 acre farm, he asked her to move to the farm with him and she refused, saying that she would not live on it if he would give it to her; that she left, with her son, on August 7, 1948, for the state of Washington; that he had no letter or other communication from her from that time until the date of the trial, except an answer to a business letter that he wrote her.
He stated that, during their residence at the farm, on three or four occasions, he had returned to the home and observed that "she had a lot of boxes packed," as though she was preparing to move; that he made no comment to her in regard to the boxes or her intentions; that before leaving for Washington she told plaintiff that she didn't want to live with him any more, was tried of him; that he asked her: "Why don't we get a divorce?"; that she said she didn't want one; that plaintiff said: "Why don't you leave me?"; that defendant said: "Well, you would be surprised at how many times I come awfully near it."
Defendant testified to the effect that she and plaintiff had a satisfactory married life until after she sold him the home farm; that plaintiff took her on his stock buying trips, and to other places in the community; that after he bought the home his attitude seemed to be different; that he rarely took her to visit the neighbors, or the sick, or to town; that he frequently displayed anger and would not converse with her; that he threw a pair of scissors at her; that he would not fix up the house, as he had agreed to do; that they quarreled while on a trip to the state of Washington, in 1947; that he sold the home, saying that he would buy a more comfortable home; that they agreed to move to Washington, where he had a son living, and where one of her sons proposed to move; that they sold all of their personal property, including household goods; that it was agreed that she should go to Washington with her son, who had a car and a trailer; that plaintiff was to come out after he attended to some business and visited his brothers in Oklahoma; that she wrote him a post card while on the road to Washington, another after arriving, and one on his birthday, September 15; that he did not write or communicate with her, except for a business letter which she answered with a business letter; that plaintiff did not ask her not to go to Washington, and did not ask her to live with him in Missouri; that she would have lived with him on the farm if he had asked her to do so before she left.
Other credible witnesses testified to the effect that they understood, from what plaintiff had said in their presence, that he and defendant intended to move to Washington after he sold his farm and they had a public sale. None stated that plaintiff made such a direct statement but that he said things that they considered to mean, unequivocally, that he was going to Washington.
The court found, as we also do, that defendant did not suffer such indignities as to render her condition in life intolerable. Her own evidence was to that effect, since she stated that she would have continued to live with plaintiff if he had asked her to do so. The judgment against defendant, on her cross-bill, should be affirmed.
Plaintiff's petition for divorce was properly sustained. It is apparent, from the testimony of both parties, that they had not been happy in their marriage relationship for about four or five years, at least, prior to defendant's departure from Missouri. Their post-nuptial contract and the testimony of both, indicate that they disagreed regarding their respective properties and, probably also, regarding the sharing of household expenses. If all had been as it should have been between them, she would not have remained in another state for a year and a half, away from her husband, without making a effort to communicate with him regarding his state of mind toward her, and his intentions as to coming to her; nor would plaintiff have remained silent toward her for such a length of time without reason. Since we have found that plaintiff was not guilty of offering her such indignities as to render defendant's condition in life intolerable, so as to justify her obtaining a divorce on her cross-bill, it follows that she absented herself from his abode, without legal justification, for more than a year, which constitutes grounds for divorce.
The allegations of the petition, while not specific in that regard, are to the effect that defendant abandoned and deserted plaintiff on August 7, 1948, and that such abandonment continued until the filing of the petition. Defendant so construed the petition because, in her answer, she denied that they separated as man and wife on that date, and denied that she deserted plaintiff as he contended. She pleaded that they had agreed to move to Washington; that she went out ahead of him, by agreement; and alleged that plaintiff had failed to join her, or to support her, or to provide a home for her "for the past eighteen months."
The evidence regarding the separation of the parties on August 7, 1948, regarding the reason for defendant's going to Washington and not returning, and of plaintiff's remaining in Missouri, is conflicting. The answer to the real reason for the behavior of the respective parties depends on whose testimony will be accepted as true, plaintiff's or defendant's. If plaintiff's version is true, then he is not at fault and defendant is the offending party; if defendant's testimony is to be accepted as true, then plaintiff is not without fault. However, the trial judge found for plaintiff on this conflicting oral testimony and we are inclined to defer to his findings.
The judgment should be affirmed.
BOUR, C., concurs.
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. The judgment is affirmed. All concur.