433 S.W.2d 52 | Mo. Ct. App. | 1968
In this divorce case, the husband is plaintiff. The wife responded to his petition by filing an answer in the nature of a general denial. At the conclusion of the husband’s testimony, the trial court found him not to be innocent and by its decree awarded the wife an allowance for attorney fee and denied the divorce. The husband has appealed.
His petition set out the date of marriage as April 13, 1935, and the separation date as January 1, 1958. The misconduct of the wife, among other things, was alleged to have included excessive drinking and consorting with other men. The children were emancipated and a divorce was the only relief sought.
The husband as a witness testified as to the misconduct of the wife and estab
Basically, the husband contends that the requirement a person seeking a divorce must be legally “innocent and injured” is outmoded, should be abandoned, and that a divorce should be granted without regard to marital fault. The argument is not novel. Our Supreme Court in 1869 in the case of Hoffman v. Hoffman, 43 Mo. 547, construed the counterparts of what are now Sections 452.010 and 452.090 V.A. M.S. and declared, “If both parties have a right to divorce, neither party has.” Inherent in this basic rule is the requirement a party seeking relief must be “innocent” of any misconduct which would give his or her spouse corresponding grounds for divorce. In the intervening one hundred years, the appellate courts of this state have repeatedly restated this rule and consistently followed and applied the standards found in the Hoffman case. Mo.Dig., Divorce, '⅞3 55; Simon v. Simon, Mo., 248 S.W.2d 560; Cody v. Cody, Mo.App., 233 S.W.2d 777; Fudge v. Fudge, Mo.App., 355 S.W.2d 381; Ezell v. Ezell, Mo.App., 348 S.W.2d 592; Gregg v. Gregg, Mo.App., 416 S.W.2d 672; J. v. K., Mo.App., 419 S.W.2d 461; Franklin v. Franklin, 365 Mo. 442, 283 S.W.2d 483. In the latter case, our Supreme Court stated that making proof of innocence an affirmative burden of the plaintiff was “ * * * neither more nor less than an application of the equitable doctrine of ‘clean hands’ to a divorce action.” If we are to give more than lip service to this doctrine, it matters not whether the plaintiff’s misconduct occurred during cohabitation with the wife or after their separation. Cherry v. Cherry, 225 Mo.App. 998, 35 S.W.2d 659, 661; Glenn v. Glenn, Mo.App., 192 S.W.2d 629. With adultery being listed as a specific ground for divorce in Section 452.010, V.A.M.S., plaintiff forfeited any claim of innocence. It was not necessary for the husband’s misconduct to be alleged as recriminatory matter in the wife’s answer. First, because the plaintiff had the affirmative burden of showing his freedom from such misconduct, and secondly, the right of the trial court to protect the interests of the public was “not concluded by a failure to plead.” Owen v. Owen, 48 Mo.App. 208; Cody v. Cody, Mo.App., 233 S.W.2d 777; Brackmann v. Brackmann, Mo.App., 202 S.W.2d 561. As we said in Langshaw v. Langshaw, Mo.App., 331 S.W.2d 15, “ * * * a divorce is not to be granted for the mere asking.” A further argument is made that the failure of the wife to testify prevented the trial court from knowing whether or not she had consented to the husband’s misconduct. Such evidence of collusion could only have created a further bar to divorce as specifically provided in Section 452.030, V.A.M.S. The overall ten- or of plaintiff’s argument is that there is no advantage in leaving the parties married. In view of the parties’ conduct, it would not be facetious to say we can see little disadvantage to them. Although equitable principles are applied, a proceeding for divorce is a statutory action, and this court is not the proper forum to consider the suggested desirability of changing the law on the subject. State ex rel. Couplin v. Hostetter, 374 Mo. 770, 129 S.W.2d 1, 4. The trial court properly denied plaintiff a divorce.
The judgment is affirmed.