Hawley v. Hawley , 223 Mo. App. 162 ( 1928 )

^* Corpus Juris-Cyc References: Divorce, 19CJ, section 368, p. 145, n. 62. Action for divorce. Decree went in plaintiff's favor and defendant appealed.

The parties were married April 8, 1923, in Greene county, Missouri, and have lived in that county since that date. Both parties had been previously married and plaintiff had three children, two girls and one boy. The defendant had four children, all boys. The petition alleged numerous indignities and also abandonment. This suit was filed April 20, 1926, and an amended petition filed December 14, 1926. The answer was a general denial and a plea of former adjudication.

It appears that plaintiff had filed a suit for divorce against defendant October 20, 1925, and alleged about the same indignities that were alleged in this action. That case was tried and plaintiff's petition dismissed. At this trial, the court would allow no proof of indignities that occurred prior to October 20, 1925, on the ground that they were barred by the former judgment. The question of abandonment for one year before this suit was filed and indignities that occurred since October 20, 1925, were not adjudicated in the former suit.

Both these parties had been previously married and both had children living at home. The plaintiff had two girls and one boy, aged respectively nine, five and three years. The defendant had four boys, aged fourteen, eleven, nine and five years. When the parents married and these two families were brought together to live together in the same house and as one family, it is not surprising that differences should arise between the parents and in a case of that kind the court might be justified in granting a decree on less proof than in a case where the likelihood of differences arising was not so great. The evidence on plaintiff's part was not very strong in this case except as to the fact that since October 20, 1925 defendant had not offered to take her back and had not furnished, and had not offered to furnish her, any support for more than a year before this suit was filed. To those facts and to some slight indignities offered by defendant since October 20, 1925, her testimony was direct and positive. Defendant testified that he had sent parties to plaintiff since October 20, 1925, to try to induce her to come back but none of these parties were placed on the witness stand to corroborate him.

We are of the opinion that there was sufficient evidence to sustain the finding of the trial court and we are not disposed to disturb it. The judgment will be affirmed. Bradley and Bailey,JJ., concur.