131 Mo. App. 571 | Mo. Ct. App. | 1908
This is a divorce suit. The parties were married September 11, 1873, in Kentucky, moved to Bowling Green, Missouri, in 1877, and have resided there ever since. At the time of the trial in 1906, plaintiff was fifty-three years old and defendant fifty-six. They have seven children whose names and ages at said time were as follows: Garnett, 31 years old, Maude 28, Martha 26, Prank 24, Annie 20, Joseph 18 and Mary 14. The first separation, plaintiff says, was in September, 1901, and continued until Christmas, 1903, when, because of her sympathy for defendant, who was ill, she resumed conjugal relations with him. During that interval the parties lived in the same house, but plaintiff occupied a room with her daughter Maude, and defendant says he did not understand they were separated but that his wife was taking care of Maude who was sick. A separation occurred January, 1904,
We have concluded to accept the findings of the court below as supported by the weight of evidence. The indignities established against defendant by the decree well might render plaintiff’s condition intolerable and entitled her to a separation. Nevertheless we deem it fair to defendant to say there is much in the record which tends to explain and palliate most of the graver offenses he was found to have committed. He denied having intentionally insulted his wife by the use of epithets and, in effect, said if he did so it was when he was not conscious of what he said in consequence of his sufferings and from drugs he had taken. Physicians testified he might have been in a semi-delirious state and hardly aware of his conduct. His acquaintances of years’ standing, and who are admitted to be among the best citizens of the community, join in giving him the character of a sober, upright and industrious man, and vindicate him from any improper relationship with the young lady who is interested with him in business. Most of the members of the family appear to be sickly and all of them nervous, high-strung and irritable, easily angered and prone, when angry, to violent speech and sometimes acts. The behavior of the children toward both parents, but chiefly the defendant, was often rep
We take up the question of alimony. Whether or not the court’s alloAvance is reasonable is to be determined on consideration primarily of the property and earning capacity of the defendant, but Avith reference, too, to the means owned by his Avife in her own right,
A half interest in 3 buildings..........$ 900
Two-thirds interest in abstract books... 3,000
Law Library........................ 300
Four horses ........................ 300
One note .......................... 260
Cash............................. 800
Other personal property.............. 200
Total......... $5,760.
Such is our maximum valuation of his holdings after careful attention to the testimony bearing on the question. The defendant is fifty-eight years old, utterly broken in health, unable to practice his profession and the income from the abstract business is very small. In fact the testimony is that for three or four years past the income has not been enough to pay the expenses of keeping them up — has been not quite four hundred dollars per annum. Defendant is manifestly near the end of his earning capacity and to pay a judgment of $2,200 and then $15 a month for the support of the minor children, will probably be beyond his power. To compel him to raise such a sum will reduce him in our opinion, to absolute penury. Considering the property belonging to plaintiff which he paid for, it looks too harsh to force a payment out of his present means of $2,200. The allowance of $15 a month for the two