Million v. Million

106 Mo. App. 680 | Mo. Ct. App. | 1904

ELLISON, J.

This action was brought by plaintiff against her husband for divorce. The decree was for plaintiff and that she have the custody of their two minor children. Defendant thereupon appealed.

The charge in plaintiff’s petition, was habitual drunkenness and indignities which rendered her condition intolerable. Defendant filed a cross-bill in which he charged indignities against plaintiff in having a clandestine correspondence with a man; and with improper and indelicate conversations -with other men. The further specific charge of adultery was made.

The evidence disclosed that plaintiff and defendr ant had lived together as husband and wife for several years. That there were two children born of the marriage ; one a boy six years old and the other a girl four years old. That both the paternal and maternal grandparents of the children are alive and are willing and able to care for, protect and educate the children. The evidence showed that defendant was an habitual drinker of intoxicants and it was very persuasive that he was an habitual drunkard. It was also shown that he had been guilty of adultery and this he failed to deny although a witness in his own behalf. This entitled her to a divorce, McCann v. McCann, 91 Mo. App. 1; Adkins v. Adkins, 63 Mo. App. 351 — unless she was barred by her own conduct.

On the other hand, while it was shown that plaintiff had engaged in a clandestine correspondence with a man and that such correspondence was of a highly improper character, though not of itself showing adultery; yet defendant, on becoming fully aware of the facts, condoned the offense. There was other evidence of reprehensible conduct on the part of plaintiff with a man living near by which was not condoned and which, if believed, should bar her right to a divorce.. But that evidence was evidently not credited by the trial court.

The conclusion which that court reached was that the plaintiff was the injured party. There was conflict in the evidence and the trial court’s opportunity for judgment as to the credit to be given was much better than ours could possibly be. In such cases we defer to the conclusion reachéd by that court. Torlotting v. Torlotting, 82 Mo. App. 192, 200; King v. King, 42 Mo. App. 454.

So we are disinclined to interfere with the custody of the children as ordered by the trial court. When plaintiff left defendant’s house and went to her parents defendant refused to let her take them with her. It is said that at the trial the little girl, then four years old, was inclined to remain with the father’s parents, while the boy, then six years old, was inclined to stay with his mother. A child so young as the girl and having been separated from the mother might very well manifest a disposition to remain with her grandparents where she had undoubtedly been kindly and affectionately treated. But, as has been already stated, it appears that plaintiff’s parents are able and willing to aid her in caring for the children. It seems to us that in such circumstances children of such age should be left with the mother.

On the whole record we do not find ground sufficient to justify us in disturbing the decree and it is accordingly affirmed.

All concur.