CLEMENS v. CLEMENS

WOLFE, Commissioner.

This is an appeal from a decree awarding alimony pending an appeal in an action wherein the plaintiff had brought suit to divorce his wife and she had filed a crossbill upon which the trial court granted her a decree of divorce and thirty thousand dollars alimony in gross. Upon appeal to the Supreme Court the decree of the trial court was reversed and the plaintiff was granted a divorce. Before the case was decided by the Supreme Court the trial court made an award of one thousand dollars alimony pending the appeal. The plaintiff appealed this order to the Supreme Court but that court held that the jurisdiction of this second appeal rested in this court and it was transferred here.

The evidence presented at the trial of the divorce case is fully narrated in Clemens v. Clemens, Mo.Sup., 235 S.W.2d 342, and no purpose would be served in restating it since the only question for our consideration has to do with the after-judgment motion and award.

The trial court granted the decree of divorce on February 2, 1950, and four days thereafter ordered the plaintiff to pay one thousand dollars to the defendant for her support pending the appeal of the case. On August 11, 1950, the defendant filed a motion for an allowance of "additional temporary alimony", in which she asserted that she was "without means of support for herself" pending the determination of the appeal. When the motion came on for hearing counsel for the plaintiff objected to the hearing of the motion on the ground that the court had previously (on February 6, 1950) made an award of one thousand dollars for the support of defendant pending the appeal, but the court stated: "Well that was the Court's opinion at that time. I thought that ought to be proper, but they are claiming conditions have changed. I will hear the testimony."

Defendant testified that she had spent all of the money that had been awarded her on February 6. She used $500 of it as a payment on the purchase price of an automobile and the rest on living expenses. She had spent the intervening time at Palm Beach and Port Washington, working as a waitress. Prior to her marriage (which was her third) she had been employed as a stenographer but she made no effort to seek a stenographic position since her divorce and was not employed at the time of the hearing. On direct examination she stated that she was wholly without funds, having no bank account and "not even enough to eat lunch on today." On cross-examination the following appears in the transcript of record:

"Q. You do not have any money in the bank? A. No sir.

"Q. No? A. No."

At this point counsel for the plaintiff moved that the hearing be continued, stating as ground for his request that information had just come to him that the defendant had over $1,000 on deposit with the Mercantile-Commerce Bank and Trust Company of St. Louis. While objections to such a continuance were being voiced by her counsel the witness interrupted by saying: "It isn't much, it comes to a thousand and five dollars."

A recess was taken at this point at the suggestion of her counsel and upon resuming testimony she stated that the sum was the remainder of $2300 she had taken from a joint savings account at the time of their separation. It might also be noted that she had run up charges at various department stores totaling $2,000 since the separation in 1949 and had lived in hotels charging her expenses when she had permission of her husband to live on the farm which they jointly owned and where they had lived prior to their separation.

Plaintiff testified that the joint account had been a savings account to which they both had made deposits. He deposited to the account an amount equal to any sum she saved from an allowance that he gave her. It had reached the total of $4,000, exclusive of interest, when he drew $2,000 from it to buy the defendant a mink coat.

It was upon this evidence that the court saw fit to increase, by an additional allowance of $1,000, the amount it had previously awarded the defendant as alimony pending the appeal. It is plaintiff's contention that the evidence does not support the award and that in making it the court abused its discretion.

In Schulte v. Schulte, Mo.Sup., 140 S.W.2d 51, loc. cit. 54, the court stated: "In appeals in divorce cases and collateral issues arising thereunder, where there is a conflict in the testimony, deference is given the finding of the trial judge who has the persons before him and thus had a favorable opportunity to observe the witnesses on the stand and determine where the truth lay. However, in the instant case, we have no conflict in the testimony, the case arising solely upon the testimony of the husband in support of his own motion to modify the decree of divorce respecting the payment of alimony and maintenance, and it thus becomes our sole duty to review the evidence and to arrive at our own decision."

Bassett v. Bassett, Mo.Sup., 280 S.W. 430; Vincent v. Vincent, Mo.Sup., 123 S.W.2d 86; Summers v. Summers, Mo.App., 222 S.W.2d 514.

This court in discussing the question of alimony stated in Knebel v. Knebel, Mo.App., 189 S.W.2d 464, loc. cit. 467, that it was difficult to lay down any fast rule, but went on to say:

"However there are certain factors which must almost invariably enter into consideration, such as the financial status of the respective parties, including the question of their individual estates, incomes, obligations, and necessities; the contributions of each to the accumulated property; the probable future prospects of each; their respective ages, health, and ability to follow gainful occupations; their stations in life; their children, if any, and the disposition made with respect to their custody; the duration of the marriage, and whether it was one of affection or convenience; and the conduct of the parties, with particular regard to the cause of the divorce, and the relative or comparative responsibility of each therefor. * * *

"Certainly a divorced wife should have no right to feel that she should be permitted to sit in idleness at the expense of her former husband as the mere consequence of the fact that he was adjudged the guilty party."

Here the plaintiff was a man of means, but his wife had the right to continue living as she had in the home that they jointly owned so it appears that her necessities were negligible. She had made no contribution to the accumulated property for the joint savings account mentioned all came originally from her husband. They had only been married six years and at the time of the trial she was thirty-seven years of age and had a vocation while he was sixty-five years of age and was retired. There were no children born of the marriage and the wife has been adjudged the guilty party in the final determination of the case. She had sought no permanent employment although she had a vocation she could follow. It will be seen that defendant has failed to bring herself on the favorable side of any of the factors that are to be considered in the awarding of alimony.

The court at the outset of the hearing stated that it had previously made an allowance which it thought was sufficient but it was hearing the matter to determine if changed circumstances made an additional allowance necessary. The only change shown was that defendant had squandered the money given her, and so even though her evidence had been credible there was nothing before the court upon which it could have granted an additional allowance.

There is, however, a question of the credibility of the defendant in this case that should not be passed by without comment. Usually the question of the credibility of witnesses rests with the trier of facts and the appellate courts defer to the finding of the trial judge where witnesses of opposing parties testify to conflicting facts, but since we are not confronted with such a situation we are obliged to reach our own conclusions and in doing so we must evaluate the testimony of the defendant. Her motion alleged that she was without means of support and on three occasions during her testimony she stated that she had no bank account. When it became apparent from the remarks of plaintiff's counsel that he knew of an account that she had, she then volunteered the statement that it only amounted to a thousand and five dollars. Such a state of facts brings to mind the maxim, "Falsus in uno, falsus in omnibus", which, if strictly applied, means that when a witness has testified falsely to any one material fact his testimony as a whole should be disregarded. Ordinarily, however, it is a cautionary maxim used to warn the trier of facts that all of the testimony of a witness may be false if he has lied as to one material fact. As stated in Bush v. Kansas City Public Service Co., 350 Mo. 876, 169 S.W.2d 331, loc. cit. 334: "The falsehood which will authorize the disregarding of a witness' testimony must be as to a material matter, or at least as to a matter which the witness believes to be material, and a witness is not to be discredited because of a discrepancy, or contradiction, or even deliberate falsehood as to an irrelevant or immaterial matter."

However, the mendacity of this defendant was not confined to any irrelevant or immaterial matter for she had most wilfully testified falsely to the only material fact under consideration. It therefore appears that the quoted maxim should be strictly applied and her testimony be held of no value for any purpose whatever.

For this reason, it is the recommendation of the Commissioner that the decree of the circuit court awarding additional temporary alimony be reversed.