Opinion
No. 21753.
November 3, 1952.
APPEAL FROM THE JACKSON COUNTY CIRCUIT COURT.
Lucien Littick, Walter Raymond, Kansas City, for appellant.
Paul Van Osdol, Jr., Kansas City, for respondent.
This is an appeal from a judgment for a divorce and alimony in gross in the sum of $2,500. On November 1, 1949, the plaintiff (the husband and respondent) filed suit for divorce against the defendant in the circuit court of Jackson County; on November 12 defendant filed her answer and cross-complaint; on October 24, 1951, the case came on for trial. At that time defendant asked that the case be continued due to her physical condition.
In opposition to the request for a continuance, plaintiff offered the testimony of Dr. William Gist. He testified that he had examined the defendant the day before and that all her complaints related to her heart and circulation. When he first took her blood pressure she was in an emotional and upset state and he found it to be approximately 190/90; he visited with her for about ten minutes and again took her blood pressure and found it to be 145/90; that for a person her age a normal blood pressure would be anywhere from 115 to 130 over 70 or 85; he listened to her heart and did not detect any murmurs or any evidence of organic disease; that while she was upset and emotional her pulse varied from 110 to 140; that a person with high blood pressure is more likely to have a vascular accident when they become excited or emotional than one who does not have high blood pressure. Concerning whether it would be dangerous for defendant to proceed with the trial, the doctor was asked:
"Q. Could you foresee any great danger in the case of Mrs. Van Fleet in proceeding here in this divorce proceeding? I call your attention to the fact she will take the stand as plaintiff, or upon her counterpetition? A. You mean could I foresee an accident occurring?
"Q. Yes. A. I don't believe I could answer that. I don't know.
"Q. You don't foresee any more possibility than any one else having that kind of a condition? A. No."
On cross-examination he stated: "I having seen this woman for this first time it probably would be better did she not go into court." He further testified that a person with high blood pressure should not keep late hours and do considerable drinking; that such conduct is "a great deal worse" than coming into court for trial.
Plaintiff next offered Mr. Bentzinger as a witness. He testified that he had been managing the apartment building where defendant lived; that he was suffering from an ailment which kept him awake at night; that during the two or three weeks prior to the trial he had seen Mrs. Van Fleet go out in the evening around 7:00 and come back around 12:00, 1:00 and 2:00 o'clock; that on Saturday night, about a week before the day of the trial, he saw three men come in with her about 8:00 o'clock, and shortly all three went out but soon came back; "they all got tight" and made a lot of noise; the next day when he cleaned the apartment he found three empty fifths of whiskey and about 20 or 24 beer cans in the trash can outside of defendant's door; that the day following this drinking and unusual noises, the defendant called and wanted him to cash a check for $50; "her tongue was so thick she could hardly get it right"; that on other occasions he had gone to defendant's apartment and told her they would have to quit making so much noise or she would have to move; that on many other occasions he had seen the defendant coming and going late at night.
Dr. Philip Byers, offered as a witness by defendant, testified that on Monday before the day of trial he had made a thorough examination of defendant's heart and chest and found no abnormal condition and there were no murmurs; the electrocardiogram and an examination of the chest and lungs did not reveal any abnormality; that her blood pressure in the left arm was 160/92 and in the right arm 148/86, and her pulse was 110; that such blood pressure did not prevent defendant from coming into court and testifying, but one blood pressure reading would not be sufficient evidence to answer that question unequivocally; that about one month before the day of trial the defendant had been hospitalized for a very minor operation, and upon examination he found her blood pressure 200/110. He declined to say whether defendant was physically able to proceed in court "because I like to sleep at night," but he did think there was some danger. He stated that defendant's condition is more or less permanent and that there is a chance of it getting worse as she grows older. On cross-examination he testified that the defendant was a regular patient of his and that she had formerly worked in his office, and at that time she had high blood pressure and her condition was about as he found it on his examination before trial. The exact time of her employment in the doctor's office is not quite clear, but it does appear that she worked there as late as November, 1949.
Following this testimony the court called for a consultation in his chambers. That conference is not reported in the transcript, but when all parties returned to the courtroom the record shows that plaintiff dismissed his petition and the cause proceeded to trial on defendant's cross-bill without objection. She testified to sufficient facts to entitle her to a divorce. When defendant's counsel asked if the agreed settlement of alimony had been submitted to her she stated that it had, and he then explained that by the agreement the defendant was to be awarded $2,500 alimony in gross, payable $50 a month; attorney fees, and an automobile; whereupon defendant stated that she understood the alimony was to be paid in a lump sum. After some discussion the court suggested a short recess to allow a conference between defendant and her counsel. Upon returning to the stand defendant stated that she understood and would accept the settlement, and that she was satisfied with the advice of her counsel. The court again explained to her what the settlement meant and that it would not be modified later, and defendant stated that she understood that and it was agreeable. About that time one of her friends came into the courtroom and she asked permission to confer with such person. On returning to the stand she again stated that she was satisfied with the settlement. Whereupon the court entered a decree of divorce for defendant and allowed her $2,500 alimony in gross, payable $50 a month, and $500 attorney fees, and a certain automobile.
Within ten days thereafter defendant filed a motion to set aside the decree because the agreement relating to alimony was not her own "by reason of her disturbed mind and physical condition." There was no further evidence offered in support of this motion; it was overruled, and defendant perfected her appeal.
The basic complaint made on this appeal is that the denial of a continuance by the court was arbitrary and constitutes an abuse of discretion.
It is the settled law that the granting of a continuance rests within the sound discretion of the trial court, but it is not an absolute or arbitrary discretion; it is one that is subject to review if the discretion has been unsoundly exercised. In support of this general principle, appellant cites Noah v. L. B. Price Merc. Co., 208 Mo.App. 149, 231 S.W. 300; State ex rel. Stanley v. American Surety Co., Mo.App., 80 S.W.2d 260, 263; McGirl v. Wiltz, Mo.App., 148 S.W.2d 822, 827; Hartle v. Hartle, Mo. App., 184 S.W.2d 786; State ex rel. Piepmeier v. Camren, 226 Mo.App. 100, 41 S.W.2d 902, 904. We have examined those cases and they support the aforementioned general rule, but the facts in those cases concerning the necessity for a continuance are so different from the facts in the instant case that they are not controlling.
In addition to the evidence heretofore referred to concerning appellant's physical condition at the time of trial, it is undisputed that she was about 35 years of age, a university graduate, and had worked for some time in a doctor's office as a technician; that the divorce case had been pending for approximately two years and that the question of settlement of alimony and property rights had been discussed on several occasions prior to the day of trial. The only objection appellant voiced to the settlement was that she thought the alimony should be paid in a lump sum instead of by the month. But after she had conferred with her attorney and with a friend in the courtroom, she testified that she understood the terms and conditions of the alimony agreement and that they were acceptable to her. We find nothing in the transcript which would justify this court in holding that the trial court abused its discretion in refusing to grant a continuance.
Appellant also injects the argument that her motion should have been sustained because "the court insisted that she compromise and settle with plaintiff or immediately go to trial in a contested case," which prevented her from exercising her free will in negotiating a settlement and which amounted to coercion. We find nothing in the record to support this argument. It is true that while defendant was testifying concerning the alimony settlement, she stated that she thought plaintiff would pay the $2,500 in a lump sum, and the court said: "I thought this was all settled"; to which the defendant replied that she could not accept the alimony at $50 a month, and the court replied: "Then we will have to go to trial in the matter"; whereupon the court asked if she desired to confer with her attorney, which she did. She then returned to the stand and said she understood the situation and would agree to the settlement as outlined; and the court asked: "You are satisfied with the advice counsel has given you, so there will be no criticism of counsel or the court? A. Yes."
There is grave doubt whether defendant's after trial motion properly raises the question of duress or coercion; but, in the interest of justice and fairness to the defendant and the trial court, we will dispose of the argument. We have considered the cases cited by the defendant and have no quarrel with the principles of law announced therein, but the facts and circumstances in those cases make them inapplicable. Some of such cases are: Coleman v. Crescent Insulated Wire Cable Co., 350 Mo. 781, 168 S.W.2d 1060; Bova v. Bova, Mo.App., 135 S.W.2d 384, 385. In the Coleman case the court said, 168 S.W.2d at page 1066: "According to the modern doctrine, with which our courts are in harmony, the question of duress is one of fact in the particular case. The question is: Was the person so acted upon by threats by the person claiming the benefit of the contract, for the purpose of obtaining the contract, as to be bereft of the quality of mind essential to the making of a contract, and was the contract thereby obtained." In McCandlish v. Linker, Mo. Sup., 231 S.W.2d 162, 164, in discussing the same question, the court said: "The final test is: Was one party to the transaction prevented from exercising his free will by the threats or wrongful conduct of the other and the contract obtained by reason of such facts?" There is no evidence that the plaintiff (the husband) had used any threats toward the defendant or brought any undue influence to bear upon her. The charge of duress is leveled at the trial judge because of his conduct at the trial. In deciding this issue we should keep in mind, (in addition to the evidence, supra, concerning her physical condition), the age, education and experience of the defendant; that she had continuously been represented by able counsel and consulted freely with him and with a friend in the courtroom; was fully advised by her attorney and by the court of the exact provisions and meaning of the alimony award; that she at no time objected to the amount of the award; her only contention at the trial was that it should be paid in a lump sum instead of so much a month. When all the facts and surrounding circumstances are considered, we are unwilling to say that the court's action amounted to duress or coercion.
Respondent has filed a motion to dismiss the appeal because it is "frivolous." Under the facts in this case we think the motion should be overruled, and it is so ordered.
The judgment is affirmed.
All concur.