101 Mo. App. 365 | Mo. Ct. App. | 1903
Plaintiff sued defendant for divorce, and defendant by cross-bill in turn asked the same relief. Each charged the other with intolerable indignities, and after full hearing the trial court refused a divorce to either party, and awarded plaintiff temporary alimony at rate of $25 per month pending suit, and-an allowance as attorney’s fee and for suit money,
After an acquaintance of three months or less, the parties hereto were married, the ceremony being performed by plaintiff’s father on the fifteenth day of April, 1897, and they lived together until the tenth day •of September, 1901, one child, a boy now about five years of age being born of the marriage. Consequent •on injuries sustained when nine years of age, defendant’s lower limbs were paralyzed, and he was compelled to ■depend on his hands and arms for locomotion; but despite his crippled condition, he was able to perform much of the work of his occupation as a small farmer, could mount a. horse from the ground and ride any kind of farming implement. During their married life defendant employed a farm hand "when he could secure one, but from time to time when he was without such assistance, plaintiff worked faithfully and aided defendant on her part, helping to build fences, feeding and caring for the stock, shucking corn, hauling wood, harnessing teams and doing other work about the farm. Reserving the complaint that defendant had impugned plaintiff’s character, which will be later considered, the graver charges made against her husband by the plaintiff consisted of harsh, cruel and wicked names applied to her, abuse in the presence of others to her shame and mortification, and striking her frequent blows with his fists, sticks of wood or any other articles convenient. The plaintiff testified in support of such, allegations, but her testimony was unsupported, nor corroborated by other witnesses, and was negatived by the testimony •of her husband denying any such gross misconduct •or cruel maltreatment by him.
The court below, from the opportunities of the trial, was best qualified -to pass upon and weigh such conflicting testimony, and its finding that the plaintiff failed to establish the causes of divorce will be deferred :to, and the conclusion that the plaintiff did not offer
The cross-bill of defendant further charged desertion on the tenth of September, 1901. It appeared that plaintiff desired to accept employment at a powder mill two or three miles from their home, to which defendant objected as dangerous, also urging that it was her duty to remain at home to care for the child and perform her other domestic duties. He further warned and threatened that if in defiance of his wishes she carried out such purpose, she could not return, and her departure ensued. Before their separation he had found fault with her conduct in being frequently absent from home and in the degree of intimacy existing between her and a farm hand whom he discharged and threatened to kill because of his suspicions. The expression of doubt regarding the propriety of her actions in this regard wasalso advanced as further ground in support of her petition. Accusations of infidelity made by the husband against the wife without just ground and untrue are undoubtedly intolerable indignities comprehended within the meaning of the statute. Clinton v. Clinton, 50 Mo. App. 296; Lewis v. Lewis, 5 Mo. 278. But the demeanor of the plaintiff was not beyond criticism, and while we take this occasion to adopt and approve the finding of the trial court, that the testimony failed to disclose that her conduct justified the conclusions of her husband and went no farther than to establish indiscretions and acts provoking and stimulating gossip and scandalous insinuations by her acquaintances and neighbors, yet considered in the most lenient and charitable light, her behavior was well calculated to justify his remonstrances, and, when repeated, to arouse the impatience and indignation in which he was shown to have rudely and roughly indulged. In the face of the stern fact that his belief in her constancy to him had been shaken, by a succession of letters and .personally on occasions of her visits to his house to see her child, a well as by the intermediation of a witness at the trial,
The testimony is conclusive that in his afflicted state he was industrious, domestic in his habits, and provided as liberally for his family as their condition in life demanded and his moderate resources and impaired capabilities permitted. It may be admitted that defendant was shown to be easily aroused to anger and irascible, but the physical infirmities he was compelled to endure might well render his temperament inore petulant than one not oppressed with such ailments. But Ms imperfections in this regard were apparent and their probable effect upon his disposition should have been weighed and considered before plaintiff entered upon their married life and accepted him for better or worse. The departure of plaintiff from-her husband’s roof was unjustifiable, and being continuous for one year without reasonable cause, entitled him to have the prayer of his petition granted.
The proof showed that the father was prepared to take charge of his child, through the care and with the aid of his mother’s widowed sister, who had made her home with him since the absence of appellant and was shown to be a woman of tenderness, experience and intelligence, and the future welfare, maintenance and education of the child will be promoted and secured in the custody of the father.
The judgment will be reversed and the cause remanded with directions to the lower court to award the custody of the child to the defendant, with reasonable rights reserved to the plaintiff to visit it, and to enter a decree of divorce in favor of defendant, and annulling
