249 S.W. 407 | Mo. | 1923
On respondent's petition for divorce and alimony the trial court dissolved the marriage and gave judgment for $20,789.76 alimony in gross, and this appeal followed.
The marriage occurred in 1907, and the parties lived together until October 1, 1919. The petition charges, in *453 great detail, cruelty endangering respondent's life, indignities, and adultery on the part of the husband in 1913 and 1919. The answer admits the truth of the charge of adultery in 1913 and the contracting of "a loathsome disease" from that connection, but pleads condonation of that offense, denies the other charge of adultery, and avers that appellant treated respondent with kindness and affection.
It is unnecessary to go into detail with respect to the evidence concerning the charges of indignities and cruelty. That evidence fills much of the record and centers about the charge of excessive sexual relations enforced by mental duress. With respect to this it is enough to say that the evidence was sharply conflicting. L.B. testified that in 1919 she was employed at the Reynolds home, and appellant on several occasions seized her and had intercourse with her. Her testimony was unequivocal and was not shaken on cross-examination. At a time near the last of these instances respondent's mother, a visitor in the household, chanced to see appellant as he held the girl and was endeavoring to induce her to submit to him. This provoked inquiries by respondent which resulted in exposure of the illicit relations. The deposition of this witness, who was of foreign descent, somewhat ignorant and unfamiliar with English and court proceedings, had been taken previously, by appellant. On her direct examination by appellant's counsel on that occasion she testified frankly as to her relations with appellant. Counsel then cross-examined his witness and secured the answer upon which he relies to impeach her. The answer chiefly relied upon is one made to a bifurcated question. She had already testified in detail to her relations with appellant, and had further testified that when, on inquiry, she had told respondent of them, respondent had said "this would be the last time she would live with him and got ready and packed her things;" that respondent asked whether witness would "help her out" when she "had to go to court;" wanted her as a witness, and the girl said she told respondent *454 she would testify. Counsel asked her: "Now, then, isn't it true, L____, that Jim Reynolds never had anything to do with you, but Mrs. Reynolds and Mrs. Machen got you to say that? Isn't that true now? A. Yes, sir. Q. Mrs. Machen and Mrs. Reynolds got you to say that? A. Yes, sir. Q. And it is not true, is it? A. What Mr. Reynolds did to me; yes, sir." On cross-examination witness explained that by saying Mrs. Reynolds and Mrs. Machen told her to say this or that she did not mean they told her to tell anything except the truth, but always insisted she tell nothing else. On the trial the witness said she did not intend to give any testimony in her deposition different from her testimony on the trial. She denied she had done so. She had had but one year in school where English was taught. Appellant denied her charges. Respondent separated from appellant October 1, 1919, the day L.B. told her of appellant's conduct. The evidence shows respondent to be a woman of high character. This is not questioned. She performed her duties as a housewife at all times and frequently accompanied appellant upon his trips to his Illinois farms where his duties of supervision required his presence for considerable periods. On these occasions respondent did the housekeeping, as in their Cape Girardeau home. She wrote his letters and aided him in other ways. Appellant makes no real complaint of his wife. He is a man of considerable wealth, which will be more particularly stated and considered in connection with the question raised concerning the allowance of alimony.
I. It was incumbent upon respondent to make out her case by a preponderance of the testimony. The trial court has found that she did so. While this court is not absolutely bound by that finding, yet this is a case of conflict of testimony of such a character that considerable deference is due the trial court. [Cherry v. Cherry, 258 Mo. l.c. 403, 404; Hoecker v.Burden: Hoecker, 222 S.W. l.c. 389.] This is true with respectTrial to all the issues of fact in the case. The witnessFinding. *455 L.B. was before the court and so was appellant. There is no suggestion in the evidence that her testimony was inspired by any motive save the obligation of her oath as a witness. She was not of bad reputation. There is no evidence she had relations with others, and her testimony clearly shows that appellant's attentions were unwelcome and were resisted. If appellant is right, this girl went upon the stand and, without any motive shown or of which the evidence creates a suspicion, deliberately swore her own reputation away. The rule respecting corroboration of the evidence of a paramour is not clearly applicable to the facts of the case, is not a hard-and-fast rule (Delaney v. Delaney, 69 N.J. Eq. l.c. 603), and is now weakened by the fact that it had its origin in considerable part from the fact, which no longer exists, that the parties were not competent to testify. In the circumstances, it cannot be held that the trial court was wrong in his finding.
II. Complaint is made that testimony was admitted in violation of the rule protecting confidential communications. (a) The rulings attacked in the brief were with respect to respondent's testimony concerning appellant's enforcement of his alleged inordinate sexual desires. Respondent was asked as to his character in this respect and replied that heConfidential was "of an intense nature" and his expectationsCommunications. of sexual gratification were of daily occurrence, and sometimes more frequent, when they were together. Counsel for appellant then asked whether any one was present when "this inordinate desire was communicated to" respondent and when informed that no one was, objected that these "conversations, acts and desires" were privileged communications. Cases stating the general rule (McPheeters v. McPheeters, 227 S.W. l.c. 873; Revercomb v. Revercomb, 222 S.W. l.c. 905) are cited. There is in the questions and answers objected to in the brief nothing in the way of conversation unless the word "demands" necessarily implies *456 conversation in such a connection. The argument of counsel implies that it does. If so, there never could be proof of cruelty resulting from inordinate sexual demands if the rule is as appellant contends. This has been held not to be the law (Maget v. Maget, 85 Mo. App. l.c. 11) even if appellant were right in assuming that the testimony in question necessarily involved a conversation between the parties. He is not correct in that assumption. (b) It is argued it was error to admit evidence of sexual excesses in the absence of a showing that appellant had knowledge they were injurious to respondent's health. [Maget v. Maget, 85 Mo. App. l.c. 13.] The evidence of the excesses, if any, was competent, and the question whether the appellant had knowledge of their effect was one of inference from all the facts in evidence.
III. That part of the judgment, relating to alimony, to which he objects, appellant sets out as follows:
"And it is further ordered, adjudged and decreed by the court that the defendant pay to the plaintiff by way of alimony in gross and in lieu of her inchoate dower in the defendant's real and personal property and estate the sum of $20,789.76,Alimony. and that she be hereafter barred from setting up or claiming dower or other rights in the lands and personal property of said defendant."
Appellant insists that the court had no power under the law and the pleadings to render judgment attempting "to adjudicate and settle all questions of property rights." The cases cited are Ecton v. Tomlinson,
In Davison v. Davison dower and homestead had been assigned the widow, and the clerk included in the judgment a recitation that "the same is vested in the said Florence M. Davison during her natural life or widowhood." The court held this was wholly ineffectual since the statute fixed the duration of the interest and *457 left the court no power with respect to that. What the widow took as to quantity of property, she took by virtue of the assignment; and what she took as to the duration of the tenancy, she took by virtue of the statute. The property assigned by the court became hers for the statutory period by virtue of the statute, and she accepted nothing to which her right was not absolute.
In Fisher v. Fisher, it is held that the court may not decree to the wife as alimony specific personal property of the husband. In Hasselbach v. Kleissle it is held that a decree must be within the issues. In Aylor v. Aylor the decree required the wife to release her dower as a condition of receiving the alimony granted. The court held the allowance was not excessive, even upon the assumption that the condition was void, and refused to pass upon the "propriety of such requirement."
In Ecton v. Tomlinson it was held that the court had no power to decree specific personalty to the wife as alimony, but it was also held that the acceptance of that property and an additional money allowance estopped the wife to claim dower, the release of which was made a condition of the alimony allowance in the decree. It was said in that case, in substance, that since the wife had voluntarily accepted the fruits of the void decree she would be "estopped to dispute that part which debars her of dower." The facts in that case were not exactly like those in this. The court remarked, in legal effect, that under a judgment for alimony in gross to which a release of dower was appended, the wife might accept the alimony and ignore the condition. That was said in argument only and could be conceded for the purposes of that case without affecting the conclusion, and that is the effect of what the court did say.
As was pointed out in Aylor v. Aylor, supra, appellant is not hurt by the requirement that respondent release dower in his property unless that condition is void and is worked into the allowance in such way as to render it excessive if the right to dower remains. Respondent did not appeal and does not complain of the condition *458
but expressly agrees to abide by it if the judgment should be affirmed. This feature, in case respondent collects the alimony allowed, is adequate to bring this case within the rule applied in Ecton v. Tomlinson, supra, whatever view may be taken of the remark in that opinion to which reference has already been made. Such a holding is also in accord with the decisions cited in that case. In Richeson v. Simmons, 47 Mo. l.c. 26, 27, it was held that the acceptance and acting under a void decree of divorce estopped the parties to claim property rights through the marriage relation. In Hamill v. Talbott, 81 Mo. App. l.c. 218, 219, the same thing was held with respect to property rights where there was a decree void for want of jurisdiction. In Minnesota a statute provided that the rights of a wife in the estate of a husband whom she divorced for his adultery should be the same as upon his death. The judgment for alimony made a different allowance at the instance of the parties and the wife accepted it. It was held she was estopped to set up her rights under the statute. [Linse v. Linse,
IV. It is suggested the allowance of alimony is excessive. Counsel do not argue the question but cite decisions. This was the first marriage venture of each of the parties. Respondent was twenty-four and appellant thirty-seven years of age when the marriage occurred in 1907. They lived together twelve years. The two children of the marriage died at or near birth. Appellant had inherited valuable farm lands from his father *459 and brother. He owned town property to the value of nearly or quite forty thousand dollars. His net worth, excluding respondent's claims, fairly estimated, was at least ninety thousand dollars. Some of the evidence tends to show a much greater value. His income from about 616 acres of Illinois bottom lands, about three-fourths in cultivation, was considerable. He had an income of nearly $100 per month from rental property in Cape Girardeau. The residence was large and commodious and its value estimated at $20,000 to $40,000. Respondent is a woman of education and refinement. She aided her husband in the management of his farm as well as conducting the affairs of the home. She has spent with him the years from her youth until well into middle age. Her health, through no fault of hers, is not what it was. She has no property of any great consequence. She had expended considerable sums, many hundreds of dollars, on the home property. The marriage and its experiences have, in all probability, removed her from the ranks of the teaching profession in which she was engaged for a time. She has no other means of earning. Appellant is a vigorous man with a great farm at his disposal and is capable of conducting it successfully. He is not encumbered with debts of any consequence except that he anticipates the drainage taxes on his land, and advances this accumulation as an encumbrance of about $6,000. There are no children for him to support and he has no other dependents so far as the record shows. The wife's acceptance of the award will free his property entirely from her claims. Then this record shows misconduct on his part of a character which is important in passing on the question of alimony. The wife's conduct has admittedly been blameless. In view of all this, we hold that the allowance is not excessive.
The cases cited by appellant are all exceptional. In Vordick v. Vordick,
The judgment is affirmed. All concur. *461
