Citation. Nieters v. Nieters, 815 S.W.2d 124, 1991)
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Brief Fact Summary.
Husband filed a petition for dissolution of marriage claiming the marriage was irretrievably broken. Wife denied that the marriage was irretrievably broken.
Synopsis of Rule of Law.
Under Missouri law one of five factors must be proven when one of the parties to the marriage alleges that the marriage is not irretrievably broken.
Facts.
Husband filed a petition for dissolution of marriage in 1989, his wife filed an answer denying that the marriage was irretrievably broken. The husband testified that the couple had been separated since September, 1988, and that he had a current relationship with a woman named Cindy Yates. The wife stated that the differences regarded how the children should be raised and that she had donated some money she earned to televangelists. The trial court dissolved the marriage, divided the marital property and awarded primary custody f the children to the wife, and awarded her child support and attorney’s fees. She filed a motion to amend judgment or in the alternative to order a new trial alleging that husband had not provided sufficient evidence to sustain a finding that the marriage was irretrievably broken. The trial court denied the motion
Issue.
Did husband present sufficient evidence to demonstrate that the marriage was irretrievably broken?
Held.
The record did not provide substantial evidence that the marriage of the parties was irretrievably open.
Under Missouri Law, when one party denies that the marriage is irretrievably broken, the court must be satisfied that the petitioner has established one of the following five facts: 1) respondent committed adultery and petitioner finds it intolerable to live with respondent; 2) respondent behaved in such a way that petitioner cannot be reasonably expected to live with respondent; 3) respondent has abandoned petitioner for a period of at least six months; 4) parties have lived separate and apart for a continuous period of twelve months immediately preceding filing of the petition; 5) the parties have lived separate and apart for a continuous period of at least twenty-four months preceding the filing of the petition.
The transcript failed to demonstrate that any of these five facts had been established. Although the marriage may be well beyond saving, the Court must construe the law, not make it.
Discussion.
The Court strictly applied the requirements to present sufficient evidence of an irretrievable marriage when one of the parties denies, although acknowledging that it is likely delaying the inevitable.
