Opinion
No. 7065.
March 25, 1952. Rehearing Denied May 5, 1952.
APPEAL FROM THE CIRCUIT COURT, HOWELL COUNTY, GORDON DORRIS, J.
Green and Green, Will H. D. Green and H. D. Green, West Plains, for appellant.
Robert L. Hyder, A. W. Landis, West Plains, for respondent.
This is a divorce case. In the trial court respondent was plaintiff. She was found by the trial court to have been the innocent and injured party, and was granted a divorce, with alimony and attorneys' fees. Defendant unsuccessfully filed his motion for a new trial and has appealed to this Court.
Both parties below have filed their briefs and the case is thus before us. There is no question as to the appellate jurisdiction of this Court, as the amount involved is less than $7,500.
Defendant, now appellant, makes but two assignments of error by the trial court. In his brief the first assignment of error deals exclusively with the alleged insufficiency of the evidence of plaintiff. The second assignment not only charges that the evidence was insufficient to support a decree of divorce to plaintiff, but alleges error on the part of the trial court in dismissing defendant's prayer for a divorce upon his cross-bill.
We will first consider the sufficiency of plaintiff's evidence to authorize the granting of a divorce to her. While this was a suit tried before the trial judge, we are not bound by his findings. The witnesses were before him and he was in a more favorable position to judge of the truth of their oral testimony. An appellate court should defer somewhat, but not necessarily entirely, to the findings of fact by the trial judge, where there is a conflict in the evidence.
Clemens v. Clemens, Mo.Sup., 235 S.W.2d 342; Schulte v. Schulte, Mo.Sup., 140 S.W.2d 51, loc.cit. 54; Bassett v. Bassett, Mo. Sup., 280 S.W. 430; O'Donnell v. O'Donnell, Mo.App., 216 S.W.2d 764; Vincent v. Vincent, Mo.Sup., 123 S.W.2d 86.
A brief statement of the facts, as found by the trial judge, should here be set out: Plaintiff alleged in her petition, and she testified, and her witnesses tended to prove, that defendant was very penurious toward plaintiff in many ways, and failed to furnish her proper fuel, light and clothing, and frequently quarreled with plaintiff.
Both plaintiff and defendant married in their old age, and had previously been married, and both had children. Defendant's testimony was that plaintiff compared him disadvantageously with her former husband. This was denied by plaintiff. A dislike between them was very evident. She frequently visited her daughters and defendant testified that plaintiff then neglected her home. The visits to her daughters were not denied by plaintiff; but she denied neglecting defendant and her home.
Apparently plaintiff thought defendant was financially well-to-do. The exact extent of defendant's property holdings does not appear. He had one saw-mill in Missouri, and possibly other saw-mills in Missouri and Arkansas, and was frequently away from home to look after his saw-mills. Plaintiff testified that defendant expressed great interest in his saw-mills, and little interest in her.
Owing to the age of plaintiff and defendant, and the fact that both had been previously married, possibly happily married, frequent quarrels between them occurred, and each blamed the other. Both parties claimed that their conditions in life had been rendered intolerable.
We do not believe, from all the testimony, that either plaintiff or defendant was an innocent and injured person, despite the decree of the trial judge in favor of respondent, and we hold that plaintiff was not entitled to a decree of divorce from defendant, under the testimony produced by her. The trial court properly dismissed defendant's cross-bill.
The decree granting plaintiff a divorce, with alimony and attorneys' fees, must be set aside and the trial court's judgment in that respect must be reversed; while the decree dismissing defendant's cross-bill should be affirmed.
It is so ordered.
VANDEVENTER, P. J., and McDOWELL, J., concur.