293 S.W.2d 157 | Mo. Ct. App. | 1956
To the petition of Ray F. Schneider for divorce Myrtle B. Schneider filed a general denial and a cross-claim for separate maintenance. The Circuit Court of the City of St. Louis found for plaintiff, granted him a divorce and dismissed defendant’s cross-claim. Defendant appealed on these grounds: error in granting a divorce because plaintiff was not an innocent and injured party and the evidence was insufficient to make a case of general indignities, and error in dismissing the cross-claim and not rendering a decree thereon for defendant.
On this trial anew we reconsider all of the evidence and reach our own findings, deferring to the trial chancellor who saw and heard the witnesses, but not hesitating to correct any errors he may have made. Dallas v. Dallas, Mo.App., 233 S.W.2d 738.
The trial of this case consumed parts of 17 separate court days over a period of five weeks. Thirty-one witnesses testified. Plaintiff’s exhibits were numbered from 1 to 32. Defendant’s exhibits were lettered from A to LL. Many single numbered or lettered exhibits consisted of large numbers of different items, such as checks. The transcript contains 1,356 pages. The printed briefs total 203 pages. The transcript, exhibits, printed statements, briefs and arguments have been carefully scrutinized, read and reviewed. The oral arguments of able counsel have been weighed. Considerations of time and space prohibit a detailed chronology of the indignities each of the parties litigant charged against the other or of the denials, explanations, or differing versions of various incidents as offered by each of them and as developed in this four volume record.
The parties were married on September 15, 1944. Except for a three month separation in 1947 they lived together continuously until March 14, 1954, a period of 9½ years. At the time of the marriage plaintiff was 51 years old. tie had a 22-year old son by his first wife, who died in 1940. Defendant, 50 years old, had been married and divorced three times previously. In each instance she had been adjudged the innocent and injured party.
Plaintiff’s version of the facts: Every day during the entire period that plaintiff lived with defendant he was laboring under tension created by her. There was a bickering atmosphere in the home. She nagged and quarreled with him in matters of insignificance, criticised his language, required him to take off his shoes before coming into the house. She went into tantrums, sometimes engaging in violent physical attacks upon him. At least once a week she would yell and scream at him until 2:00 or 3 :00 o’clock in the morning. She made his 22-year old son uncomfortable by telling plaintiff, within hearing distance of the son, that the latter was a permanent, uninvited and unwelcome guest for whose presence she had not bargained. She speculated that $10,000 had been spent on the son’s college education while she lacked money to buy the things she wanted. She crit-icised the son’s use of the electric lights and discouraged him from bringing his friends to the home. She expressed her displeasure by telling plaintiff that if he liked his son so well he could live with him,
Plaintiff was president of a successful business corporation with which he had been connected for forty years. His secretary was a Mrs. H, a widow of his own age who had worked for him for twenty years and for the company for thirty years. After the death of his wife plaintiff occasionally took Mrs. H out socially to card parties, restaurants, etc. and once took her and his son on an overnight plane trip to Chicago. For years plaintiff had taken her to and from work in his automobile. More than six months prior to the marriage he had given her some jewelry including a cluster ring, but they were merely old friends and there was never any intimacy between them. From the outset, however, defendant was jealous of Mrs. H. She forbade plaintiff from taking Mrs. H to and from work. She developed the notion that plaintiff was the father of Mrs. H’s grown daughter, although the child was two years old at the time plaintiff first met Mrs. H. Defendant also suspected that plaintiff had bought the home in which Mrs. H lived, a wholly mistaken idea. Defendant told other women that plaintiff was unduly attentive to Mrs. H, wondered what “hold” Mrs. H had over plaintiff, and repeated to her women friends her suspicion that plaintiff was the father of his secretary’s child and that plaintiff had bought a home for his secretary. A Mrs. W, the widow of a former officer of the company, was a member of the board of directors. Plaintiff had known her for years and customarily had taken her in his automobile to and from meetings of the board. Defendant objected to this practice, exhibited jealousy of Mrs. W, accused plaintiff of spending too much time with and paying too much attention to Mrs. W. Defendant required him to call Mrs. W on the telephone and cancel arrangements for transportation to a board meeting, saying, “I wish you would be as much of a gentleman to me as you are to Lydia.” One evening defendant invited one of her friends, a Miss F, to dinner. The guest had car trouble and came to the door seeking assistance. Plaintiff went with Miss F to get her car, which was stalled a few blocks away from the Schneider home. Later defendant inquired of plaintiff what he and Miss F were doing over on the road and accused him of “putting on a party” with her. Defendant mentioned to one Mary B that she thought plaintiff was overly attentive to Miss F on that occasion. Defendant accused plaintiff of trying to be friendly with and “making passes at” Mrs. P. The Ps were the closest and most intimate friends of the Schneiders. Once defendant and Mrs. P were horseback riding when the girth on defendant’s horse became loose and the saddle slipped. Defendant accused plaintiff and Mrs. P of conspiring to kill her by having her thrown to the road and stated that they wanted to be “free to carry on.” On' one occasion while dining out with friends
Defendants version, of the facts: Defendant loved plaintiff, wanted to make a success of the marriage. She worked for six months after the marriage at photo refinishing, using her earnings to purchase furniture and accessories for the home. She was considerate and affectionate to his relatives, and especially his son, to whom she faithfully tried to be a good mother, mending his clothes, introducing him to girls, and welcoming into the home his friends, for whom she prepared cocktail and dinner parties, and assuring him that as
Without more, suffice it to say that each party denied, minimized or sought to explain away every incident or episode of which the other complained. Much of the testimony was in diametric opposition to other testimony in the cáse. Depending upon which side was telling the truth plaintiff was either generous or penurious, friendly or hostile, a sober man and an occasional social drinker or an intemperate and hard drinking man, patient and gentle or impatient and violent, nagging and quarrelsome or quiet and agreeable, truthful or untruthful, faithful or unfaithful, unduly familiar with other women or perfectly innocent in this respect, and he either loved or hated defendant, treated her- with respect and as a companion or with contempt and made false and humiliating accusations. Likewise, defendant was either a loving and considerate wife and pleasant companion who made a wonderful home for plaintiff and for his son, or she was a deceitful, greedy, selfish, grasping, jealous, violent and extravagant adventuress. This is precisely the situation in which the rule of deference to the findings of the trial judge is peculiarly applicable. Lockhart v. Lockhart, Mo.App., 271 S.W.2d 208, loc. cit. 213; Beldt v. Beldt, Mo.App., 240 S.W.2d 983, loc. cit. 990. The trier of the facts had a prolonged and an unusual opportunity to observe the conduct and demeanor of the parties and their witnesses and to weigh, evaluate and assess their testimony. Considering his superior advantage in this respect in contrast with our comparative disadvantage in reading the cold record, giving credit for his years of experience in trying issues of fact, and considering the evidence, the character of the parties, their reliability or unreliability, the probability or improbability of their strikingly different versions of the facts and the extent and type of corroboration offered by the respective parties, we accept and approve the findings of the trial judge in favor of plaintiff and that plaintiff is the innocent and injured party; that defendant did not make a case for separate maintenance, and on this trial de novo we arrive at the same conclusions reached by the trial court.
It is objected, however, that the acts proved were not of sufficient gravity or continuity to constitute indignities within the meaning of the law, but were light and inconsequential; that the “slight friction” which occurred in this household did not amount to a course of conduct in which defendant manifested dislike, settled hatred and estrangement and alienation amounting to a species of mental cruelty. Accepting, as we do, plaintiff’s version of the facts, we are of the opinion that defendant’s breaches of marital duty and indignities as revealed by this record are of sufficient character, gravity and continuity to constitute such a course of conduct and to make plaintiff’s condition intolerable within the contemplation of Section 452.010 RSMo 1949, V.A.M.S.
Defendant asserts that plaintiff’s own conduct precludes him from obtaining a divorce; that he was not an innocent and injured party because he secretly schemed to rid himself of his wife and strip her of any marital rights to his property, persisted in having relations with Mrs. H in defiance of defendant’s wishes, struck and injured her, and was guilty of numerous marital breaches carefully detailed. The difficulty with this assertion is that the facts upon which it is based have not been proved. Some of the facts advanced have been testified to by defendant but they have not thus been established. Most of them rest on defendant’s own testimony which has been contradicted by plaintiff’s testimony and that of other witnesses for plaintiff. Plaintiff did admit
Defendant complains of error in approximately twenty instances in the admission of incompetent evidence and in refusing to strike the answers - to certain objectionable questions. There is no occasion to rule these questions seriatim because a divorce judgment will not be reversed for errors im the admission of incompetent evidence where, as here, the judgment is sustained by other evidence which is competent. Lockhart v. Lockhart, supra; Padgett v. Padgett, Mo.App., 231 S.W.2d 207, loc.cit. 210.
Finally, there was no error in dismissing defendant’s cross-claim for separate maintenance. Neither of the essential elements of such a cause of action, aban-donmént without just cause and failure to support, Herbig v. Herbig, Mo.App., 245 S.W.2d 455; Kendrick v. Kendrick, Mo. App., 251 S.W.2d 329, was shown.
Consequently, the judgment of the circuit court should be affirmed and the Commissioner so recommends.
PER CURIAM.
The foregoing opinion of HOUSER, C., is adopted as the opinion of the court.
The judgment of the circuit court is accordingly, affirmed.