
    FRANCES A. STAUFFER, Appellant, v. JOHN B. STAUFFER, Respondent.
    St. Louis Court of Appeals.
    Opinion Filed December 7, 1920.
    1. HUSBAND AND WIFE: Maintenance: Desertion: Wife Entitled to Maintenance Though Her Statutory Bight to Divorce Has Accrued. While marriage in this State is a civil contract, and statutory grounds for divorce are provided for under our statutes, yet neither the husband nor the wife, when entitled to a divorce, is required by reason thereof to file an action therefor; hence it follows that upon marriage, when through no fault of the wife the action and conduct of the husband toward her are such as to entitle the wife to a statutory ground for divorce, she, under section 8295, Revised Statutes 1909, will be entitled to separate maintenance even though the husband, after the wife’s right to a divorce has accrued, shall offer to take her back and afford her suitable maintenance upon her return.
    2. —-: -: Wife Entitled to Decree of Separate Maintenance: AUowance Fixed on Appeal. Where the wife was entitled to a decree of separate maintenance and the husband had been earning between $175 and $200 a month, and the wife had an income of approximately $5 month and had been living with her married daughter and unable to pay anything for her board and lodging, held that $60 per month would be a fair and proper allowance.
    Appeal from the Circuit Court of the City of St. Louis.— Eon. George E. Shields, Judge:-
    Reversed and remanded (with directions).
    
      
      George F. Bech, for appellant.
    (1) An offer of reconciliation must be made in good faith and not merely to lay a foundation for a divorce. It must be couched in terms likely to bring about a reconciliation. A cold and formal invitation to return, especially if it does not contain an expression of regret for the offerer’s own wrong-doing, is not sufficient as an offer of reconciliation and may be disregarded. 14 Cyc. p. 619. (2) Where one spouse has been guilty of a legal desertion, it seem well settled that he or she, in order to deprive the other of the right to a divorce, must make the overtures for a reconciliation before the statutory period has elapsed, and the right of the deserted spouse to a divorce. has accrued. Overtures after such right has accrued are ineffectual to deprive the deserted spouse of his or her right. 9 R. C. L., p. 373, sec. 161; 14 Cyc., p. 620. (3) In this case plaintiff has clear grounds for a divorce. But grounds for divorce are not necessary to warrant her refusal to live with defendant. All that is required is that she have reasonable cause for her refusal. R. S. 1909, sec. 2370 and 8295 ; Tarrant v. Tarrant, 156 Mo. App. 725; Gillinwaters v. G-illinwaters, 28 Mo. 60; Neff v. Neff, 20 Mo. App. 182. (4) Condonation is forgiveness on condition that the offense be not repeated. If this condition is not kept, the right of the injured party to urge the condoned indignities as grounds for divorce is restored. Herriford v. Herriford, 169 Mo. App. 641; Moore v. Moore, 41 Mo. App. 176. , (5) There must be evidence of knowledge of the adultery. Condonation cannot .take place without it. Welch v. Welch, 50 Mo. 395, 19 C. J., p. 84, sec. 194.
    
      Rollins, Schneider & Halter for respondent.
    (1) Appellant should have accepted respondent’s offer to take her again into his home and take care of her. The offer was made in sincerity. Creasey v. Creasey, 168 Mo. App. 98. (2) The judgment and verdict of the trial court was for the right party and is supported by substantial evidence. The trial court had tb« opportunity of observing the attitude of the witnesses on the stand. The verdict should not be reversed by the appellate court. Yan Prank v. Missouri Pacific Ry. Co., 89 Mo. App. 460; Torlotting v. Torlotting, 82 Mo. App. 192; Huffman v. Huffman, 217 Mo. 182. 1; Rawlings v. Rawlings, 102 Mo. 563. (3) The trial court committed no error in excluding testimony on behalf of plaintiff, because(a) The things complained of, if committed, had been condoned by the appellant. Appellant will not be permitted to assume a different theory on appeal to that taken in the trial court. Appellant assumed the position in the trial court that there had been a reconciliation with a promise to desist; on appeal she should not be permitted to urge that she had no knowledge. Moore v. Moore, 41 Mo. App. 176; Wiber v. Strobel, 236 Mo. 649'; Richter v. Merril, 84 Mo. App. 150; Williams v. Railway Co., 233 Mo. 666. '(b) The matters complained of were not pleaded in plaintiff’s petition and therefore could not be presented as grounds for affirmative relief. Pattison’s Missouri Pleading, secs. 676, 763, 880; Mathieson v. Railroad Co., 219 Mo. App. 522; Mahill v. Jenkins, 69 Mo. App. 279; Rhodes v. Land & Lumber Co., 105 Mo. App. 279. (c) Appellant cannot complain of error because she failed to offer proof of the things and matters complained of. There is nothing before the appellate court to show what evidence appellant desired to introduce. Shelby Co. Ry. Co. v. Crawford, 235 Mo. 459; Holzmer v. Metropolitan Street Ry. Co., 261 Mo. 379, 169 S. W. 102; Louis v. Louis, 134 Mo. App. 566.
   BECKER, J.

This is an appeal from the judgment of the trial court dismissing plaintiff’s suit for separate maintenance.. Plaintiff’s petition sets out the marriage of the parties in 1880 and that the defendant deserted plaintiff in 1910 and thereafter failed to properly support plaintiff.

It is not disputed but that the defendant voluntarily abandoned plaintiff as alleged in the petition and that though defendant did make payments to the plaintiff from time to time after lie abandoned ber, yet sneh payments were insufficient for ber support, and that from February, 1918, until November, 1918, and from January, 1919, up to December 4, 1919, the date of tbe trial below, defendant failed to pay anything for ber support and maintenance.

It appears that in July of 1918, plaintiff bad filed a prior suit for maintenance which suit, during tbe progress of tbe bearing thereof, was dismissed by tbe plaintiff.

Tbe sole defense to this action is that tbe defendant, on July 17, 1918, (several days after tbe wife bad filed ber suit for maintenance), offered to receive bis wife again into bis home and to support ber; that such offer was renewed on tbe 24th day of January, 1919, and again renewed at tbe time of tbe trial of this case below, and that tbe plaintiff refused and still refuses to return to tbe defendant and resume tbe relation of husband and wife.

Tbe learned trial judge at tbe time of dismissing plaintiff’s bill and entering judgment against ber, filed tbe following memorandum: ‘ ‘ On tbe theory of • the Creasey case, 168 Mo. App. 98, 151 S. W. 215, I think this case should be dismissed. Tbe defendant has offered to take back bis wife and properly support ber, and she has repeatedly refused tbe offer. It was made again at tbe trial. Tbe evidence does not show it was made in bad faith to avoid separate maintenance and if made in good faith tbe right to maintenance ceases. In my judgment plaintiff ought to accept ber husband’s offer and be reconciled. Plaintiff’s petition is dismissed.”

We are of tbe opinion and so bold that tbe learned trial court was in error in arriving at its conclusion in this case as well as its view that tbe Creasey case was authority for such ruling. In tbe Creasey case, which was a suit for maintenance, tbe record discloses that less than tbe statutory period of one year, in fact less than four months, bad elapsed from the date of tbe alleged desertion up to tbe time of tbe filing of tbe suit, so that the right of the deserted wife to a divorce on that ground had not accrued.

The record in the case before us discloses that the desertion had continued for more than eight consecutive years immediately next before the filing of plaintiff’s petition for maintenance, and consequently Mrs. Stauffer had become entitled to a divorce on the ground of desertion many years prior to the filing of her action.

In the Creasey case the record discloses that “both were of excellent moral character,” and that while the husband had on the very day he left his wife instituted a suit for divorce, he dismissed his petition a short time thereafter and visited his wife and requested her to come back to him. This request was made at a time when, according to the wife’s own statement, she still loved her husband, and prior to the time that she had filed her suit for maintenance. She rejected this offer and refused to return to him and shortly thereafter instituted her suit for maintenance. The record in the Creasey case further discloses that prior to the hearing of the maintenance suit the defendant called on the plaintiff three separate times trying to induce her to return to. him, and met with refusals. In addition thereto while in Texas on a visit he wrote her two letters profuse with protestations of love and entreaties to come back to him, which letters also contained promises to forgive and requests to be*forgiven. And after his return he again visited his wife from twelve to fifteen times asking her every time to come to live with him. All of which occurred before the statutory period of one year had elapsed from the day when the husband had left the wife. ' In light of these facts it was properly held, in the Creasey case, that the wife was not justified in refusing defendant’s overtures.

The facts in the case before us are different. Here the husband made no offer to return until many years after the plaintiff’s right to a divorce on the ground of desertion had become fixed, and until after plaintiff had instituted an action for maintenance. We are of the opinio and so hold that in the case at bar the husband’s offers to return (even if it were to be held as made in good faith, a matter which we need not determine) being made after the statutory period of time necessary to give the wife ground for divorce had elapsed will not, though refused, defeat the action of the wife for maintenance. To hold otherwise would he to deprive an innocent and injured wife, whose right to a divorce had already accrued, upon the mere repentence of the husband and his offering to take her back, of her right to maintenance as specifically provided for by section 8295, Revised Statutes of Missouri, 1909, and to force her, if she insists upon support from her husband, to receive him back and reestablish the relation of husband and wife, thereby resulting in a condonation of the very offense which under our statutes entitles her to a divorce. We cannot subscribe to such a proposition. While marriage in this State is a civil contract and statutory grounds for divorce are provided for under our statutes, yet neither the husband or the wife, when entitled to a divorce, is required by reason thereof to file an action therefor. It follows that upon marriage, wh'en through no fault of the wife, the action and conduct of the husband toward her are such as to entitle the wife to a statutory ground for divorce, she,- under our maintenance statute, will be entitled to separate maintenance even though the husband after the wife’s right to a divorce has accrued shall offer to take her back and afford her a suitable maintenance upon her return.

In light of what we have said above it follows that the learned trial court was in error in dismissing plaintiff’s petition but under the facts in this record should have decreed her maintenance in keeping with the earnings of the defendant. The defendant has been earning between $175 and $200 a month as a locomotive engineer. Plaintiff herself has but an income of approximately $5 a month and has been living with her married daughter and unable to pay anything for her board and lodging. Under all the facts and circumstances in this case we hold that $60 per month would be a fair and proper allowance.

Therefore for the error pointed out the judgment is reversed and the cause remanded with directions to the trial court to enter a decree of maintenance in favor of plaintiff for $60 per month as of the 24th day of December, 1919.

Reynolds, P. J., and Allen, J., concur.  