226 S.W. 40 | Mo. Ct. App. | 1920
This is an appeal from the judgment of the trial court dismissing plaintiff's suit for separate maintenance. Plaintiff's petition sets out the marriage of the parties in 1880 and that the defendant deserted plaintiff in 1910 and thereafter failed to properly support plaintiff.
It is not disputed but that the defendant voluntarily abandoned plaintiff as alleged in the petition and that though defendant did make payments to the plaintiff *518 from time to time after he abandoned her, yet such payments were insufficient for her support, and that from February, 1918, until November, 1918, and from January, 1919, up to December 4, 1919, the date of the trial below, defendant failed to pay anything for her support and maintenance.
It appears that in July of 1918, plaintiff had filed a prior suit for maintenance which suit, during the progress of the hearing thereof, was dismissed by the plaintiff.
The sole defense to this action is that the defendant, on July 17, 1918, (several days after the wife had filed her suit for maintenance), offered to receive his wife again into his home and to support her; that such offer was renewed on the 24th day of January, 1919, and again renewed at the time of the trial of this case below, and that the plaintiff refused and still refuses to return to the defendant and resume the relation of husband and wife.
The learned trial judge at the time of dismissing plaintiff's bill and entering judgment against her, filed the following memorandum: "On the theory of the Creasey case,
We are of the opinion and so hold that the learned trial court was in error in arriving at its conclusion in this case as well as its view that the Creasey case was authority for such ruling. In the Creasey case, which was a suit for maintenance, the record discloses that less than the statutory period of one year, in fact less than four months, had elapsed from the date of the alleged desertion up to the time of the filing of the suit, sothat the right of the deserted wife to a divorce on that groundhad not accrued. *519
The record in the case before us discloses that the desertion had continued for more than eight consecutive years immediately next before the filing of plaintiff's petition for maintenance, and consequently Mrs. Stauffer had become entitled to a divorce on the ground of desertion many years prior to the filing of her action.
In the Creasey case the record discloses that "both were of excellent moral character," and that while the husband had on the very day he left his wife instituted a suit for divorce, he dismissed his petition a short time thereafter and visited his wife and requested her to come back to him. This request was made at a time when, according to the wife's own statement, she still loved her husband, and prior to the time that she had filed her suit for maintenance. She rejected this offer and refused to return to him and shortly thereafter instituted her suit for maintenance. The record in the Creasey case further discloses that prior to the hearing of the maintenance suit the defendant called on the plaintiff three separate times trying to induce her to return to him, and met with refusals. In addition thereto while in Texas on a visit he wrote her two letters profuse with protestations of love and entreaties to come back to him, which letters also contained promises to forgive and requests to be forgiven. And after his return he again visited his wife from twelve to fifteen times asking her every time to come to live with him. All of which occurred before the statutory period of one year had elapsed from the day when the husband had left the wife. In light of these facts it was properly held, in the Creasey case, that the wife was not justified in refusing defendant's overtures.
The facts in the case before us are different. Here the husband made no offer to return until many years after the plaintiff's right to a divorce on the ground of desertion had become fixed, and until after plaintiff had instituted an action for maintenance. We are of the opinion and so hold that in the case at bar the husband's offers to return (even if it were to be held as made in good faith, a matter which we need not determine) being made after the statutory period of time necessary to give the wife *520 ground for divorce had elapsed will not, though refused, defeat the action of the wife for maintenance. To hold otherwise would be to deprive an innocent and injured wife, whose right to a divorce had already accrued, upon the mere repentence of the husband and his offering to take her back, of her right to maintenance as specifically provided for by section 8295, Revised Statutes of Missouri, 1909, and to force her, if she insists upon support from her husband, to receive him back and reestablish the relation of husband and wife, thereby resulting in a condonation of the very offense which under our statutes entitles her to a divorce. We cannot subscribe to such a proposition. While marriage in this State is a civil contract and statutory grounds for divorce are provided for under our statutes, yet neither the husband or the wife, when entitled to a divorce, is required by reason thereof to file an action therefor. It follows that upon marriage, when through no fault of the wife, the action and conduct of the husband toward her are such as to entitle the wife to a statutory ground for divorce, she, under our maintenance statute, will be entitled to separate maintenance even though the husband after the wife's right to a divorce has accrued shall offer to take her back and afford her a suitable maintenance upon her return.
In light of what we have said above it follows that the learned trial court was in error in dismissing plaintiff's petition but under the facts in this record should have decreed her maintenance in keeping with the earnings of the defendant. The defendant has been earning between $175 and $200 a month as a locomotive engineer. Plaintiff herself has but an income of approximately $5 a month and has been living with her married daughter and unable to pay anything for her board and lodging. Under all the facts and circumstances in this case we hold that $60 per month would be a fair and proper allowance.
Therefore for the error pointed out the judgment is reversed and the cause remanded with directions to the trial court to enter a decree of maintenance in favor of *521 plaintiff for $60 per month as of the 24th day of December, 1919.
Reynolds, P.J., and Allen, J., concur.
