Chapman v. ChapmanChapman v. Chapman
On December 29, 1948, Maudie M. Chapman, respondent herein, filed a suit for divorce in the circuit court of Lewis County, Missouri, against Charles E. Chapman, appellant herein. In her petition in that cause, respondent charged appellant with indignities. On March 17, 1949, that cause was heard by said court, and the respondent introduced evidence to substantiate her charges of indignities. Appellant introduced evidence which tended to prove that respondent was not an innocent and injured party and that appellant was not guilty of the acts alleged. On April 18, 1949, the court found against the respondent and dismissed her petition. Respondent then filed a motion for a new trial which was overruled on May 6, 1949.
On May 16, 1949, respondent filed this action for divorce against appellant in the same court, and it is from the finding of the court on the trial of this action that this appeal is made. Respondent‘s amended petition alleges the marriage, separation, and that the plaintiff is an innocent and injured party. It states that a divorce was denied plaintiff in the same court on April 18, 1949, and then alleges indignities on the part of defendant and states that all of the things complained of occurred after the court overruled respondent‘s motion for a new trial in the former action on May 6, 1949. The prayer is for a decree of divorce, custody of a child born of the marriage and alimony and support money.
Plaintiff‘s testimony in substance was as follows: She and appellant were married on the 1st day of March, 1939, in Chicago, Illinois. In 1946 they moved to a farm seven miles southwest of Canton, Missouri. On the 6th day of May, 1949, in the afternoon,
The testimony of William Horn corroborates the testimony of respondent with the additional fact that this witness says that appellant directed his threat to use a shotgun on him as well as on respondent.
Mrs. Mamie Miller, of Galesburg, Illinois, testified that respondent occupied a room in her home since June 19, 1949, and had conducted herself in a moral and ladylike manner at all times.
At the conclusion of respondent‘s evidence appellant filed a motion for a directed verdict, which was denied by the court. Thereupon, the appellant, by his counsel, announced that he would stand on his motion for a directed verdict and offer no evidence. Thereupon, the court entered a decree of divorce for respondent, and decreed that respondent was entitled to the custody of the child, and alimony in the sum of $10 per month, and support for the child in the sum of $40 per month. After unavailing motion for new trial, or, in the alternative, to modify the decree, appellant has perfected this appeal from the decree of the circuit court.
It will be observed that by the prior action respondent sued appellant for a divorce alleging indignities, and the court after trial dismissed her action, and within a few hours after that judgment became final by the overruling of her motion for a new trial on May 6, 1949, she went to appellant‘s home, which before their separation had also been her home, and had an altercation or wrangle with appellant, which from its nature could only have lasted for a few minutes. It may be conceded, as plaintiff‘s testimony indicates, that appellant was wholly to blame for the wrangling by becoming angry because of respondent‘s coming to the place. It may also be conceded that during the altercation respondent on three occasions asked appellant to permit her to return and live with him as his wife. Respondent so testifies and appellant did not take the witness stand and deny her testimony. During the altercation appellant called respondent a vile name; threatened her if she ever returned unless by a court order; twisted her arms; accused her of infidelity, etc. These acts undoubtedly constituted an indignity. But did they constitute “indignities” as contemplated by
The “indignity” alleged and testified to by respondent at most was one “indignity” made up of several contemporaneous acts or statements, forming together one whole transaction. One indignity is not sufficient upon which to base a decree of divorce. Dowling v. Dowling, supra; Cannon v. Cannon, supra; Hess v. Hess, 232 Mo.App. 825, 113 S.W.2d 139; Fawkes v. Fawkes, Mo.App., 204 S.W.2d 132; State ex rel. Fawkes v. Bland, 357 Mo. 634, affirmed 210 S.W.2d 31; Hoffman v. Hoffman, Mo.App., 224 S.W.2d 554; Elliston v. Elliston, Mo.App., 215 S.W.2d 63. Furthermore, “indignities” in the sense of the divorce statute are not shown by mere wranglings and exhibitions of temper due to lack in both parties of conciliatory spirit. Haushalter v. Haushalter, Mo.App., 197 S.W.2d 703; Fawkes v. Fawkes, supra. However inexcusable was appellant‘s conduct on the one occasion, it constituted but one “indignity” which is not made a cause for divorce by our statute.
Furthermore, it has been held that the burden is on the applicant for divorce to show that he or she is an innocent party. Haushalter v. Haushalter, supra. In this case the issue was squarely made by appellant that respondent was not an innocent party. The statute,
We are bound by the law as it has been laid down throughout the years, and must reverse the judgment and decree. It is so ordered.
ANDERSON, P. J., and McCULLEN, J., concur.