Louis City Circuit Court. — Hon. Selden P. Spencer, Judge. This court has full power to review the evidence and make such decree as it may deem proper. Deschodt v. Deschodt, 59 Mo. App. 102. Divorce is a legal right and, where the facts entitling either party to it exist the courts have no discretion to deny it.
Cited by 1 later decisions — most recently April 1906
¶2*74Appellate practice.*73In reviewing records like we have here appellate judges approach the subject at a disadvantage. Section 4508 of the statute provides, that where the proceedings for divorce are ex parte the court “shall be satisfied that the petitioner is an innocent and injured party.” That is in a case of desertion the trial judge must be satisfied that the separation was not through the connivance, consent or approval of the party seeking the divorce. The statute means that the judge must be legally satisfied, that is satisfied from the evidence. If all the proof introduced by the complainant tends to establish the desertion and there is nothing in the conduct of the complainant on the witness stand tending to show collusion, then the judicial conclusion must be that the ground of divorce has been established. The difficulty in reviewing such a question *74is that we do' not have the complainant before us, and are therefore in a bad position to determine the question in its double aspect. To illustrate: The evidence in the case at bar as written shows the separation; that it was without collusion; that it had existed for the requisite length of time; and that the plaintiff treated her husband well. These facts, except the last one, were established by the testimony of the plaintiff only. The conclusion reached by the trial judge can not be reasonably accounted for except upon the hypothesis that he saw something in the conduct of plaintiff while on the witness stand that convinced him that the separation was with her approval, and if so there could be no desertion. This may have been clearly indicated by the tone of her voice, or the toss of her head, or by some other gesture or action which could not possibly be gotten into the record. In reviewing divorce cases the appellate courts must defer to the judgment of the trial court.. The present case calls for a practical application of this rule. The evidence as written is so plain that something must have occurred at the trial, some action of the complainant, that led Judge Spencer to conclude that the separation was collusive. Under the rule of practice above stated we would be justified and ought to assume this to be true, for it will be noted that the facts and circumstances attending the alleged desertion were proved only by the testimony of the plaintiff. If there had been corroborative testimony as to the attending facts of the alleged desertion as was the case in Ulrey v. Ulrey, not yet reported, and Deschodt v. Deschodt, 59 Mo. App. 102, I would concur in reversing the judgment upon the theory that the circuit judge had misconceived the legal import of the statutes. As it is, I must, in deference to his judgment, dissent.
