167 Mo. App. 94 | Mo. Ct. App. | 1912
Lead Opinion
Action for divorce -instituted in the circuit court of Monroe county, October 24, 1910, and transferred on change of venue to Randolph county where it was tried in June, 1911. After hearing the evidence the court rendered judgment grant
The parties were married in Monroe City, January 31, 1907, and lived as husband and wife in that city until their final separation .which occurred October 22, 1910, two days before the commencement of this suit. Two children were born of the marriage but at the date of the separation, only one was living- — a boy then two years old. At the date of their marriage plaintiff was twenty and defendant twenty-three years of age. The parents of plaintiff had been divorced and her father, Corbin G. Stewart, died in 1909. After her divorcé the mother of plaintiff had married a Mr. Levy, a merchant of Monroe City and plaintiff was reared in Monroe City as a member of the Levy family. She is described by the witnesses as a modest, retiring and diffident young woman, deeply attached to her mother and but little inclined to social intercourse. Defendant, who is the son of Frank Dimmitt, a banker of Shelbina, was engaged in the jewelry business in Monroe City. The evidence of plaintiff portrays him as a man of crabbed dictatorial and jealous disposition. . The first year of the married life of the young couple was uneventful but after that serious disagreements arose that were marked by outbursts of temper on the part of defendant and finally culminated in the complete alienation of plaintiff’s affection for her husband and her refusal longer to live with him. It is the contention of defendant that the estrangement of his wife and the wrecking of their marital happiness was caused primarily by the unwarranted interference of h.er mother in their affairs but we agree with the learned trial judge that this charge is not supported by the weight of the evidence.
The circumstances under which plaintiff told her husband a falsehood thus may be stated. Plaintiff was the sole heir of her father who, as stated, died in 1909. By the provisions of the will of his uncle, Dr. Frederick Campbell Stewart, who died in Italy leaving a large estate in Philadelphia, plaintiff, as heir of her father, became the owner of the remainder of an estate in which a life interest was devised to one of the testator’s daughters who is an elderly woman. At the request of plaintiff’s mother, George A. Mahan, a brother of Mrs. Levy and a prominent lawyer in Hannibal, made an investigation of the interest of plaintiff in the Stewart estate and under date of December 17, 1909, wrote Mrs. Levy a letter giving the results of his investigations and his professional advice. Among other things he stated that an insurance company, on1 the assumption that plaintiff would survive the life tenant, would advance plaintiff twenty-five thousand dollars on account of her remainder, on the assignment by her of an interest in the .estate double in value the amount of the advancement. Mr. Mahan said in the letter: “When I get further details of this matter
Mr. Mahan continued to work on the case and on returning from a trip to Philadelphia, wrote Mrs. Levy on June 30, 1910, to the effect that by selling part of the remainder to the insurance company he could obtain twenty-five thousand dollars in cash for plaintiff, leaving an estate of about one hundred thousand dollars to pass to her on the death of the life tenant. In closing the letter he said: “Now you have Carrie go to a good doctor- and have her regularly examined as if for life insurance. You can learn what doctor does this and he can get the blanks from some life insurance agent. Have this done right away and send it to me at Hannibal.”
These letters were shown to. plaintiff and their substance was discussed by her and her mother. They were not shown to defendant and though plaintiff told him in a general way about her interest in the estate, she did not disclose the subject about which her uncle enjoined her to secrecy. In obedience to the request in the last letter, she visited the office of her physician and was examined as for a policy of life insurance. At her request the physician promised not to divulge the fact of her examination to her husband. On her way
The ill treatment of defendant became intolerable and fearing he would execute his deadly threats, plaintiff fled with her baby to the home of a neighbor. She had not been there long before defendant procured a conveyance, went to her asylum and literally tearing the baby from her arms, took it to his father’s home in Shelbina. Plaintiff and her stepfather followed on the first train and arrived at Shelbina before defendant. The next day a reconciliation was effected and the parties entered into a written agreement expressive of a mutual intent to forgive and forget their past differences and to resume the status of husband and wife. They returned to their home and lived together a week but defendant did not keep his promises. He resumed his abusive conduct, repeated the accusations of infidelity and threatened to take the life of plaintiff. Again she left him, taking her baby with her, and two days later brought this suit.
Plaintiff, in her petition, bases her right to a divorce on the ground of intolerable indignities and in a general way we have referred to the evidence supporting her specific allegations. The answer, in effect, is a general traverse and a plea of condonation.
The learned trial judge enjoyed the advantage of having the parties and witnesses before him and we are satisfied with his solution of the issues of fact reflected in the judgment. Where the evidence is conflicting and evenly balanced in a cause of this character the appellate court defers to the judgment of the
In our own view of the, evidence it abundantly sustains the conclusion that defendant was guilty of grave offenses against the marital relation. The oral abuse he continuously inflicted on his wife was extremely insulting and as he now admits wholly unmerited. A woman’s character and reputation for chastity are her dearest possessions and a husband who falsely accuses his wife of impurity and by his acts and words gives publicity to his accusation inflicts a deadly blow on one he is bound by the strongest of human obligations to protect and honor. And further our law looks with deep aversion upon the wife beater. No decent husband would strike his wife in anger except in necessary self-defense and the courts of this State always, have pronounced recreant the violator of this inflexible rule. The excuse defendant offers for these breaches of marital duty does not justify him.
We do not give our approbation to the conduct of plaintiff in telling her husband an untruth about the Visit to her physician and we think her mother and uncle deserve reproof for counseling a young and inexperienced wife to take a step that their experience should have told them might lead her into a position of deception and falsehood. No consideration of property rights or pecuniary advantage can weigh in the balance with marital happiness and concord and such happiness cannot long endure where concealments and
We approve that part of the judgment granting plaintiff a divorce and pass to the issue of the custody of the child which now is about four years of age. In such cases the consideration of first importance is the welfare of the infant child. We are satisfied the judgment before us in sending the child alternately to each parent for a period of two weeks would prove injurious to an infant, especially to one of such tender years. The child needs a mother’s care and the mother is a good woman who can give it a good home, and an environment suited to its proper development. The custody of the child should be awarded to her for the present with the privilege granted defendant to visit the child at reasonable intervals.
The judgment is reversed and the cause remanded with directions to enter judgment in accordance with the views expressed.
Rehearing
ON MOTION FOR REHEARING-.
We shall not discuss that part of the motion for a rehearing filed by defendant which relates to the decree granting plaintiff a divorce since we are satisfied with the views we expressed on that subject and the motion contains no argument or authority we have not already considered.
If plaintiff should think she can satisfy such order, by an unwilling, captious and merely technical compliance and should attémpt to discourage defendant’s proper visits by making them difficult and disagreeable, she will suffer the penalty of having her child taken from her. We remand the entire subject of the custody of the child to .the circuit court with directions to make such orders from time to time as its welfare may appear to demand, giving to the mother its custody during the period of its tender infancy and as long as she shall faithfully obey the orders of the court, and giving to the father the privilege of rea
The motion for rehearing is overruled.