Creasey v. Creasey, 168 Mo. App. 68

Creasey v. Creasey

168 Mo. App. 68 | Mo. Ct. App. | 1912

CAULFIELD, J.

(after stating the facts). — We approve of the action of the trial court in denying plaintiff a divorce. It is conceded .that the plaintiff *89left Ms wife voluntarily, and the trial court has found that neither party had been guilty of misconduct sufficient to constitute a cause for divorce, a finding which we approve. It was incumbent upon him, then, if he would justly charge her with statutory desertion, to seek a reconciliation and offer to return. Such an offer must have been made in good faith, that is, with the bona fide intention to bring about a reconciliation and not merely as a device to defeat her in litigation. [Nelson on Divorce and Separation, sec. 73; Messenger v. Messenger, 56 Mo. 329.] If the plaintiff made such an offer in good faith and she refused and her refusal continued for the statutory period of one year, he would be entitled to a divorce; not otherwise. She must be taken under the circumstances to have been absent by his consent until he offered to return or take her back, and she must have been absent without his consent for the full period of one year before she became guilty of statutory desertion.

Now we are not satisfied from the evidence that, from July 21, 1909, when he left her, until in June, 1910, when the maintenance suit was first heard, he made any offer with the bona fide intention to bring about a reconciliation; at least we are not inclined to disturb the finding of the trial court in that respect. During this period of more than eleven months, he made but four offers, of which only two may be considered as such. The one said to have been embodied in the letter sent by registered mail must be disregarded because that letter is not preserved in the record and we have no means of judging of its value or effect as an offer. The one said to have been sent through Mr. Steele cannot be regarded as an offer because it was not transmitted to the defendant as such. Steele fold her when he called that plaintiff had not sent him. TMs leaves but two — the one made in the presence of Mrs. Tucker and the one made in plaintiff’s answer in the maintenance suit. When the first *90was made, the relations between the parties were necessarily strained. For several months they had lived jarringly together. He had then left her without warning. For three months his divorce suit had been pend- ■ ing and he had been vigorously endeavoring to obtain a dissolution of the marriage. That suit was still pending when he called. It was a delicate matter for these two to meet in an attempt to restore a broken home; not a matter for a third person to witness. The presence of a third person was not calculated to relieve the strain or to allow of the frank, free avowals, confessions and discussions so necessary to a successful reconciliation. Plaintiff must have known this, but nevertheless Mrs.- Tucker was present, and there is some reason to believe that she was there by his connivance. Be that as it may, it was clearly divulged to him on this occasion that his wife believed that Mrs. Tucker was there by his prearrangement, and that she had considerable reason for so believing, Mrs. Tucker having called before her (Mrs. Tucker’s) breakfast, avowedly to deliver a message from him coincidently' with his first visit of ostensible conciliation. This visit was clearly timed most unfortunately, and, as he must-have known, was more calculated to arouse suspicion and resentment in his wife than a spirit of conciliation. If he had been genuinely desirous to effect a reconciliation at this time, it seems that he would soon have followed this visit up with an offer made under more auspicious circumstances. He was silent for a month, when he registered a letter to her. This but tends to confirm the impression that he was trying merely to make evidence, not to effect a reconciliation. Thereafter he did nothing by way of communicating with his wife, except that he says he sent Steele to see her and except for his answer in her suit for separate maintenance. As to his sending Steele, it does not appear that he sent Steele to plead with his wife on his behalf or to make her any offer, but merely^ to *91“get her decision” in response to his offer made in the presence of the witness, Mrs. Tucker. Besides the fact that he sent Steele is established only by his own • uncorroborated testimony, which is in the face of the fact Steele disclaimed to her being sent by him. Steele was not called on as a witness. We see no reason for disagreeing with the trial court’s conclusion that the offer made in the presence of Mrs. Tucker was made with a view to its being rejected and not accepted; as a mere device to aid him in litigation, not with a bona fide intention to bring about a reconciliation.

The offer which he made in his answer in the maintenance suit is even more subject to objection. Presumptively it was addressed to the court and was intended primarily to defeat her action for separate maintenance. Necessarily it was not couched in terms of entreaty or persuasion, but was cold and formal, promising and asking nothing by way of forgiveness. It was accompanied by the charge that his previous suit for divorce was brought on account, of “her acts and conduct,” thus, by implication at least, repeating his prior accusations. It was calculated to embitter rather than to conciliate.

It is clear, then, that the defendant did not refuse a proper offer of reconciliation a year ór more before this suit was brought and therefore was not gnilty of desertion under the statute and the plaintiff is not entitled to a divorce.

Thus far we find ourselves able to agree with the learned trial court. We cannot agree that the defendant is entitled to a divorce as the court decreed. First, because we do not believe that under the evidence the efforts of her husband, after the first hearing in the maintenance suit, to effect a reconcilation, should be denounced as insincere; and second, because we are satisfied that subsequently to the original separation *92and within one year thereafter, she showed by her conduct that she acquiesced in the separation.

As to the first, we may say here that the fact that _ plaintiff had previously made insincere offers must be considered in weighing the integrity of his subsequent ones, but it does not conclude the matter. The “door of repentence and return” must have been kept open to him for a year, under the law. Now we find that, at the end of the first hearing in the maintenance suit, the trial judge (not the one before whom this case was tried) laid the matter over to give the parties a chance to become reconciled, the evidence no doubt suggesting to his mind the propriety and expediency of such a course. We find the plaintiff then resorting with a surprising, though commendable, persistency to all the known modes of effecting a reconciliation. The most that may be said against his sincerity in these subsequent attempts is that he kept copies of the three letters which he wrote. As to the offers contained in these it may be said that he wished to preserve evidence of them for use in the then-pending litigation. This was not, conclusive that they were insincere, though it was a'circumstance pointing in that direction. It well may be that he made the offers in good faith, intending to perform them if accepted, though at the same time desiring to place himself in the right in case she refused, by preserving evidence of his offers. The defendant was not advised that he kept copies, so his action in doing so could have had no effect on her, and was not calculated to influence her to reject them. The trouble with his previous offers had been, that they were made under circumstances not calculated to lead to their acceptance. Not so with those embodied in these letters. The letters are framed in the language of entreaty and persuasion, and, considered as offers of reconciliation, appear to be unexceptionable. To communicate with her by letter was not improper. Indeed, that method of, communication *93is much, to he commended, because it gave him an opportunity to express himself calmly and deliberately and gave her an opportunity to consider his offer, without the embarrassment and possibility of renewing the old quarrel, which might attend a personal visit. We are not inclined to view the offers contained in these letters as being insincere, and are fortified in that view by the evidence of the other offers which he made. His persistent following up of those letters with personal visits dispels any doubt in our minds of the sincerity of the offers they contained. The offer which plaintiff made through defendant’s uncle was, it is true, made through a third person, who might be, and in fact was, used as a witness, but he was so friendly and close to defendant that it is improbable that plaintiff would have chosen him as a vehicle through which to convey a fraudulent and insincere offer of reconciliation. To communicate with her through her near and friendly relative was certainly unobjectionable and was calculated to conciliate. The other offers which plaintiff made personally are not subject to the objection that he preserved evidence of them. Defendant herself testified that on November 5, 1910, “he had been coming down there for months for me to go home with him,” — that is, since June. He had no witness on those occasions and did not try to have any. He made those offers privately and nothing is suggested which affects their sincerity. It is the same with the post cards, which, though not offers, tended in that direction. He kept no copies of them. As we have already intimated, the very number of offers which this plaintiff made after the first hearing in the maintenance suit impresses us with their sincerity. Plaintiff forcefully exclaimed in his examination in the maintenance suit, “Do you suppose I would have gone down after this woman as many times as I hav.e an 1 talked to her the way I have and not take her hack; would you have gone after anybody as many times as *94I have and her sit there and say, ‘No, no,’ every time; would yon have gone back like I have if you wasn’t sincere? No, you wouldn’t, and no other man.” This expresses our impression exactly. ■ It is inconceivable that if he was then intending formal, insincere offers to take her back, the man would have so persisted, and would have resorted to so much repetition.

It is possible that 'the cause immediately moving plaintiff to endeavor to effect a .reconciliation was the pendency of the suit for separate maintenance and the desire on his part to avoid a judgment coercing from him performance of the duty to support his wife. That does not diminish the legal effect of his offers to take his wife back, if he made them with the purpose of having her accept them if she would, and with intent, if she accepted, to take her back and treat her with kindness and respect and to perform his marital obligations. “No higher motives than those of convenience, it unfortunately must be allowed, have both induced and preserved multitudes of matrimonial unions.” [McMullin v. McMullin, 123 Calif. 653, 656.] In this case, as we have already indicated, we are satisfied that his offers were sincere, at least in the sense just mentioned, though by no means do we believe that that was the only sense in which he was sincere.

As to the alleged incident of November 5, 1910, when she says she offered to go back to him and he refused, nothing but a fragment of it is disclosed, if we observe the rule by which the case was tried. It is improper to consider that mere fragment without the explanatory matter which preceded, or to- consider the explanatory matter now, when the parties treated it as inadmissible at the trial. However, if we con-' sider her version of the whole incident, what does it amount to? Almost on the eve of the resumption of the trial of the maintenance suit, at 9:30 o ’clock at night, after refusing for months to go back to him, *95she suddenly offers to do so. After expressing some curiosity at her sudden change of front, hut willingness to receive her, he asks if she will promise to clear the record of the maintenance suit — that suit in which they had already undergone one long, hotly-contested-trial and were immediately threatened with another; in which her attorneys had a motion then'pending for $750 attorneys’ fees additional to the $150 they had already received, and she was demanding an allowance for separate maintenance. She refused to promise to dismiss the suit and he refused to take her back until she would promise to do so. She now claims that she “owed the man no promise.” We are of the opinion that she did. By her constant refusals to go back to him she had by this time put herself in the attitude of the wrongful absentee, and it was incumbent upon her now to make a proper and sincere offer, and an offer coupled with a refusal to abandon the litigation and to live in peace with him was not sufficient. [Jenkins v. Jenkins, 104 Ill. 134.] And plaintiff’s many previous offers to take her back are not to be stamped with insincerity because, when she finally consented, he insisted that she dismiss the litigation and live with him in peace. It was not improper that he should wish to get at least her promise to abandon the litigation against him before undertaking the difficult matter of taking up their lives together again. Offering peace, he was entitled to a promise of peace, and she is mistaken when she says that “she owed the man no promise.” It is to be noted that he did not purpose to delay her coming back until the suit was dismissed, but was willing that she should come back then, though it was late at night, upon her mere.promise to later abandon the litigation.

It appearing, then, that this husband repented and made a genuine offer to return and renew cohabitation before the statutory period of desertion was complete, this was sufficient to break the desertion and *96is a bar to the wife’s suit. Defendant here suggests that, at the trial of the maintenance suit, the husband refused to tell his wife’s counsel what he would do in the matter of taking his wife back, saying in substance “that is a question for the future.” We passed on that feature of the case in the maintenance suit, resolving that such answer on the part of the husband was more probably due to the fact that he had become aggravated and wroth at plaintiff’s counsel and resented the manner of his cross-examination, rather than to a real indisposition to resume his marital relations, especially in view of his testimony as to his endeavors to make up with his wife and his declarations in the prior part of his testimony. [Creasey v. Creasey, 168 Mo. App. 98, 151 S. W. 215. We see no reason for departing from the conclusion then formed. In fact, we are strengthened in it by the showing here, that immediately after the maintenance suit was finally determined in the husband’s favor, he thrice attempted to resume negotiations with his wife. As to her alleged offers contained in the motions for attorneys’ fees, filed in the maintenance suit, they were not made as offers, but as excuses for demanding money, and were calculated to irritate, without disclosing any conciliatory tendency. They should be disregarded. In saying this we do not mean to reflect upon the merits of those demands nor to impugn the motives of the plaintiff or her attorneys in making them.

The second reason which we have given for denying defendant a divorce is, that subsequently to the original separation and within one year thereafter, she showed by her conduct that she acquiesced in the separation. Although the husband’s leaving was wrongful in the first instance, it did not constitute desertion within the meaning of this statute, if the wife by her subsequent words or -conduct acquiesced in the separation. [1 Nelson on Divorce & Separation, sec. 91; Davis v. Davis, 60 Mo. App. 545; Droege v. Droege, *9755 Mo. App. 481, 486.] On the occasion of her husband’s first offer in the presence of Mrs. Tucker, we find defendant coldly inquiring what he will give her to come back and greeting with a scornful, ‘ ‘ Oh, is that all?” — his reference to himself. She further told him on that occasion and in the same connection, that should she come back to him he would have to meet conditions “you don’t think you will' have to meet.” In her answer in the maintenance suit, she is not content with refusing his offer on the ground of insincerity bat goes further and says in response to it that “there is such an incompatibility in the temperament, disposition and purpose in life between the plaintiff and defendant that a renewal of the marriage relationship would result in a repetition of the same or similar indignities stated in the plaintiff’s (her) petition.” It thus appears that, while he was insincere in these two offers of reconciliation and may be taken to have desired the separation to continue, she too desired it to continue. Where the separation is acquiesced in by both, neither is entitled to a divorce on account of it. When her uncle came avowedly from her husband with a request for her to return, she answered that “not yet, she couldn’t.” He asked her why and she said, “you don’t know all, he has even had men to watch my house.” Her letter to him disclosed the same inclination to bring up, and dwell on, his conduct before the separation as a reason for not going back to him. If we take her at her own word, it is clear that she was unwilling to go back to him because of his conduct before the separation. As that conduct was not sufficient to constitute cause for divorce, she could not, by remaining away in consequence thereof, “create for herself a cause for divorce, upon the theory that, by so electing to remain away from her husband, he incurs the guilt of deserting her. If the indignities themselves are not a sufficient cause for di*98vorce, a new cause for divorce cannot be extracted from them by the voluntary conduct of the p^rty seeking the divorce.” [Dwyer v. Dwyer, 16 Mo. App. 422.] Her subsequent failure to go back, in the face of his personal appeals to her to do so, but emphasizes what had already been disclosed, that she was at'least as eager to remain away from him as be was to remain away from her. She may have refused his first offers because she did not ’believe him sincere, but clearly that was not the only reason. The other reason, we are convinced, is that she did not desire to go back.

The judgment of the circuit court is reversed and the cause remanded with directions to the circuit court to enter its judgment that the plaintiff take nothing by his petition and that the defendant take nothing by her answer; the defendant, however, to have and recover her costs in this behalf expended. The matter of an allowance to defendant for attorneys’ fees for services here and in the circuit court, we leave to the circuit court.

Reynolds, P. J., and Nortoni, J., concur.