139 Mo. App. 493 | Mo. Ct. App. | 1909
The issue before us is raised by the divorced parents of Allie Knepper, a female minor, now eleven years old. The appeal is prosecuted by the mother from a judgment modifying the decree of divorce in which the custody of the child was awarded the mother. After their marriage, the parties lived together as husband and wife until February 15, 1907, when they separated and plaintiff with their two minor children, a boy and a girl, established her home at Bosworth. Before the separation, the parties lived on a farm south of Bosworth. They sold the farm to J. C. Huckleberry and also disposed of their personal property preparatory to the separation. On the 15th of February, 1907, they entered into a written contract by the terms of which they agreed to live apart and settled all questions relating to the division of their property. That contract contained the agreement that the mother should have the custody of the children for two years after which she should retain the little girl and the boy should go to the father. Plaintiff then instituted the present suit. In the petition she alleged certain indignities committed against her by defendant and prayed for a divorce and for the custody of the children, but did not pray for alimony. Defendant filed an answer and cross petition in which he alleged acts of misconduct on the part of plaintiff, chiefly acts which if true inculpated plaintiff with Huckleberry. When the cause came to trial in September, 1907, plaintiff dismissed her petition, the court heard the evidence introduced by defendant and decreed “that the defendant, Frank Knepper, be divorced from the bonds of matrifiiony contracted with the plaintiff, Laura Knepper, and be forever freed from the obligations of said marriage; it is further ordered that plaintiff, Laura Knepper, have the care and custody of Allie Knepper, minor child born of said marriage, and that defendant have the care and custody of Warren Knepper, minor child born of said marriage, and that each party pay one half the costs.”
The evidence adduced by defendant tends' to establish the following facts: Defendant and Huckleberry were neighboring'farmers, Huckleberry became a frequent visitor at defendant’s home and an intimacy sprang up between him and Mrs. Knepper. Defend1 ant’s history of this relation does not' reflect credit on him. To the hour of the separation he outwardly preserved a friendly attitude toward the man he now claims •defiled his home. Most of the visits of Huckleberry were either on the express or implied invitation of defendant. The excuse offered for such complaisance is that defendant was so cowed by his wife that he acquiesced in her ■plans for the companionship of Huckleberry even when his mind had become charged with suspicion that his wife’s affections were being alienated from him. After the separation, Huckleberry frequently called on Mrs. Knepper at her home in Bosworth. Neighbors saw his horse or team hitched in front of the house and the tongue of gossip wagged furiously. In the following January, Huckleberry and Mrs. Knepper left Bosworth to be married in Kentucky. They went to Carrollton
The cross petition for a divorce alleges many acts of misconduct on the part of plaintiff with Huckleberry, but it does not specifically charge her with adultery, and we shall assume from this omission that the decree given defendant does not necessarily include the finding that plaintiff was an adulteress. Turning to the evidence in the record before us, we find ample proof of the fact that before the separation plaintiff was guilty of the grave offense against the marital relation of receiving and reciprocating the attentions of a man other than her husband, but we do not believe she went to the length of committing adultery. When her affections became alienated from her husband, evidently she became possessed of the purpose of being divorced and of contracting marriage with Huckleberry who was in a position to marry her. Such conduct cannot be reprobated too strongly. The law exacts fidelity to the marital relation and though we believe defendant stupidly contributed to the demolition of his home, we find plaintiff was guilty of a flagrant outrage against the most sacred of human institutions. Further, we find that while on her way to be married to Huckleberry, she was guilty of immoral conduct at the hotels where they stopped in St. Louis and Louisville. Her attempted exculpatory excuses will not go. “Finding persons in such a situation as presumes guilt generally, courts must presume it in all cases attended with those circumstances.” [Jennings v. Jennings, 85 Mo. App. 290.]
We have stated everything of consequence that reflects on the moral character of plaintiff. An attempt was made to show an improper relation between her and a married man at Bosworth, but the attempt fell flat. Stress was also laid on the fact that she associated with
Counsel for defendant invoke the general rule applicable to an adulterous mother in cases of this character. It has been said that “A woman who has been guilty of adultery is unfit to have the care and education of children, and more especially of female children.” [2 Bishop on Marriage, Divorce and Separation, sec. 1198.] But in the same paragraph the author says: “A single act of adultery not repeated and not likely to be, whether by father or mother, has been deemed not necessarily to deprive forever the delinquent of the custody.” In the case of In re Steele, 107 Mo. App. 567, much relied on by defendant, we said: “The relator has been shown to be guilty of adultery and though she is the mother, yet her abhorrent conduct of itself, affords the strongest reasons for refusing her application for the custody, society and association of the child.”
But the facts in that case differ in material respects from those before us and indicated to us that the mother was morally depraved. A single transgression of the moral law does not necessarily betoken depravity. A person is depraved when he is generally bad, is wicked in mind and heart, loves evil rather than good, and though a single act of adultery may be considered strong evidence of depravity it is not conclusive. We are disposed to regard the relation of plaintiff with her present husband prior to their marriage as a single trans
In answer to the argument that the social ostracism of plaintiff will include the child, we find that this exclusion from respectable social intercourse is not so extensive as counsel describe it. Many good citizens of Bosworth appeared as witnesses for plaintiff and defended her. Further, it appears that the vulture gossip has picked the bones of this scandal clean, and it is reasonable to presume it will turn to other. carrion — of which, unhappily, a sufficient supply is never wanting. We perceive no reasons for thinking the child will be deprived of healthful companionship.
The judgment is reversed.