Opinion
No. 28046.
June 19, 1951.
APPEAL FROM THE CIRCUIT COURT, ST. LOUIS COUNTY, AMANDUS BRACKMAN, J.
Champ C. Stonebraker, Earl G. Smith, St. Louis, for appellant.
Barrett, Cook Fairfield, Joseph J. Howard, St. Louis, for respondent.
This is a divorce action commenced by Otto C. Beldt, based on general indignities. His wife Opal filed an answer admitting the marriage, which occurred November 16, 1918; the residence of plaintiff; that there were no children born of the marriage; and denying the remainder of the petition. She also filed a cross bill, praying for a divorce on the ground of general indignities. After a three day trial the court found for the husband, granted him a divorce and dismissed the wife's cross bill, whereupon she appealed to this court.
Her appeal entitles her to a trial anew in which we reconsider all of the evidence and reach our own findings, deferring to the trial chancellor who saw and heard the witnesses on account of his superior opportunity to judge of their credibility, but not hesitating to correct errors the trial judge may have made. Dallas v. Dallas, Mo.App., 233 S.W.2d 738.
Plaintiff, 55 years old at trial time, is a native of Hamburg, Germany, which is a center of tropical fish breeding. He came to this country in 1913. His lifetime hobby has been the propagation of tropical and gold fish. When the parties married in 1918 his worldly assets consisted of a new wife, a $400 bank account, a job at a bakery, and several fish tanks and aquarium tanks full of fish. He spent most of the $400 for furniture, continued to work at the bakery, and pursued his hobby at odd times. When the newlyweds moved to their flat he hired a special truck to transport all of the fish and fish tanks. In a short time they had fish on the stove, on the floor, in the basement, in the dining room, in the back yard, and buckets of fish on the roof. A year after their marriage plaintiff bought a house on Edmond Avenue and built a greenhouse in the backyard. At about the same time defendant took a job at Comfort Printing Company, where she worked until approximately 1927. By 1922 or 1923 according to plaintiff (or 1926 as defendant remembers), the fish business was taking so much of plaintiff's time and attention that he quit his bakery job to devote himself exclusively to the raising and sale of tropical fish.
According to defendant they had "a very happy home" until 10 years ago, although plaintiff testified that he "had trouble from the time we got married."
Our review convinces us that the trial judge correctly ruled that plaintiff is the innocent and injured party. This marriage failed largely because of a fundamental disagreement between the parties over the rights of the wife in a highly successful business venture which commenced on a shoestring and developed into a business grossing $100,000 a year, and because of her conduct and attitude toward her husband concerning the business.
It is defendant's contention that her own money as well as effort and time went into the building of the business; that she owns half of it; that it is her business. She contends that early in their married life they discussed going into the fish business together as a joint operation; that they learned the business together; that she "watched the fish" — looked at them a hundred times a day — during that first year when she remained at home; that both of them operated the business; that after she took employment at the printing firm she contributed the money she earned to make payments on the house "and to buy fish and plants and anything that we would get our hands on"; that they would both work after supper "half the night" — often until midnight or 1:00 o'clock A.M. — cleaning out fish tanks, making fish food, taking out the coal and ashes; that after he quit his job at the bakery in 1926 and she quit her job in 1927 they both put in their full efforts and time in the business; that he would tell her what to do and she would do it; that "a constant flow of people" visited their odd and rare business; that she took a lot of time explaining the business to them, and selling them fish; that she was busy cleaning the aquariums, making fish nets, caring for the furnace, keeping the employees working, picking up and delivering merchandise, mailing out catalogs (as many as 10,000 a year), keeping the books (until 1936), working in the office "to expedite things and take the strain off" plaintiff; opening the mail in the morning; answering the telephone and waiting on customers. She testified that her money went into the business; that on one occasion a $500 check of hers went to pay one Eineke in Germany for fish. She said she was "actively engaged" in the business with plaintiff until 1946, when plaintiff "took everything away from her," "put me out of everything"; that he told her "You keep your hands off the checks and don't open up any mail at all," and excluded her from the business.
Plaintiff on the other hand claims that defendant has no interest in the business; that she "never put a dime into that business"; that he had a fish business and sold fish before they were married; that she did not take care of the fish, as claimed; that he "never saw a dime" of the money she earned at Comfort Printing Company; that he did not know what she did with it; that she told him it was none of his business. Plaintiff denied that her money was turned over to him, placed in a joint account and used for the purchase of fish. He testified that all of his accumulations came out of his earnings alone. While conceding that it was possible that she may have sold some fish when he was not present and that she may have taken care of customers who came in the retail store, he denied that she took care of the fish while he was at work; said that during the war years 1941 to 1946 when he was shorthanded he asked her to help fill orders, but that she refused, saying: "No, it is your damned business, take care of it the best you can." He denied that she ever did anything in connection with the business in the evenings after coming home from work; denied that after quitting her job she put in her full time taking care of the retail business and taking care of mail orders; admitted that after quitting the job at Comfort she did make some retail sales in the store, opened the mail, and made entries of sales, mailed out catalogs in the springtime; that she "usually helped"; that she did take care of the retail trade "on occasions, whenever she happened to be there," but denied that she took care of the shipping end of the business or the bookkeeping.
One of plaintiff's chief complaints was that defendant would open the incoming mail, extract money and money orders from the mail, and convert them to her own use, not accounting for them then or later; that she would make retail sales and fail to place the proceeds in the cash register, pocketing the money instead. He cited cases of sales of $50 to $60 which she put in her own pocket. Plaintiff saw her pocket sales money "more than a hundred times" between 1927 and 1946. He claimed that as a result of this activity he finally was forced to close the retail business; that the merchandise was going out but the money was not coming in; that he was having to borrow money at the bank to keep going; that what he was making on the mail order business he was losing on the retail end; that he had to close the retail business to "save his neck"; that he had the delivery of mail at the business address stopped, thereafter got the mail at the post office, and that from that time on the business doubled.
He complained that she broke into his desk and other private places on numerous occasions; that cash disappeared from his desk; that papers would be taken out; that the office was damaged by the removal of papers until they "didn't have necessary records sometimes to make out a tax sheet." Plaintiff began locking his desk, but money and papers continued to disappear, so he changed the locks. He changed the locks a dozen times in as many years. Suspicious that his wife was ransacking his desk and stealing money and papers he made an investigation, and found her pocketbook on one occasion, containing $1500 in $50 and $100 bills. Again in 1947 he went to his office, heard footsteps in the office, and upon entering found no one. There was an open window, and on further investigation he found his wife out on the roof, with "several papers and things" in her arms, and a bulging pocketbook a foot and a half long. Instead of having an altercation with her on the roof, which would have been "silly", according to plaintiff, he gave the pocketbook a push and it fell onto the ground, where he recovered it. It contained $1500 in cash, 63 keys, several pieces of paper with detailed drawings of keys on them, and other articles. He said that she "made it uncomfortable" for him to operate the business in general, treated the employees "very unkind", and tried to make them dissatisfied.
Plaintiff complained that his wife treated his friends "like poison" and didn't want anything to do with them; that she called them all kinds of names, said she didn't care anything about them, refused to associate with and hated every one of his friends. She refused to go along on weekend trips with them. In 25 years she entertained his friends in their home on two occasions. She would accept invitations to their homes, then at the last minute would refuse to go, thereby "terribly embarrassing" plaintiff, who would make the excuse that his wife was sick. When she complained about his leaving with his friends on week-end fishing trips, and asked him to take her by herself, he took her on a trip to Gasconade County. She spent the entire time, going and coming, nagging him about his friends. Upon arriving she took a basket and went out in the woods to gather flowers and he fished alone.
Plaintiff complained that defendant refused to sign documents and deeds necessary to carry on his business; that he had placed the title to property he acquired in their joint names, but that when he would have a good offer on a piece of real estate, or a chance to sell a useless tract, or one which was nothing but an expense, she would refuse to join with him in signing the deed. She persisted in her refusal even though he offered to give her half the proceeds, saying she just didn't need the money. They had property in Reynolds County, which was developed by plaintiff and three business associates who planned a fish hatchery there. They incorporated and built a number of ponds on the place. When it came time to transfer the title to the corporation defendant refused to sign the deed, as a result of which the corporation cannot raise development capital, the business is a loss and will be a complete loss if the title is not "straightened out."
Trouble arose out of the fact that defendant's mother moved in and lived with them for 7 years. Plaintiff's father-in-law and mother-in-law subsequently moved into a house on the farm in Florissant, which greatly inconvenienced plaintiff. Plaintiff needed the house as a residence for his caretaker, so as to relieve plaintiff from the necessity of spending his time at the Florissant farm, but plaintiff did not think he had a "moral right to order them out." Although he objected to their living in that house, and took it up with his wife, she did nothing. Defendant frequently would leave the city for days at a time, once as long as a week, without informing plaintiff of her plans, and when he asked her about it received the answer that it was "none of his business." She called him a "Nazi son of a bitch," and "everything in the book practically * * * everything from a Nazi fool to a dirty dog." She failed to keep house properly. The house was upset and not clean, "a messed up affair," so that plaintiff was ashamed to have his friends see his home. On one occasion a 4 year old boy, visiting at their home with a friend, seeing the inside of the home, said: "What are you doing, moving?" The house was cleaned "very seldom." Plaintiff complained further: that defendant refused to sew buttons on his clothes, telling him that he knew how to sew, and to sew them on himself; that she refused to patch the holes in his fish nets; that she continually nagged at him, and made "all kinds of accusations"; accused him of having affairs with girls in the office which accusations were made "in front of the employees"; told him they had nothing in common, and asked him 100 times whether he wanted a divorce; that she struck him on two occasions, once with a cane; kicked him out of bed one time; kicked him "right in the testicles" on one occasion, necessitating an operation to remove one testicle; accused him on a number of occasions of trying to kill her; accused him of having steep steps built to the basement "for the special purpose of having her break her neck"; claimed that plaintiff kept the old sedan because he expected to "find her in a wreck and get killed"; claimed plaintiff turned on the gas in the house and "was trying to blow her up"; and refused to allow him to "touch her" unless he used contraceptives, although he wanted children. At breakfast defendant would nag plaintiff, and sometimes he would leave without eating, whereupon she would "scold and cuss" him all the way through the back yard and until he got out of sight. Although he had no faith in chiropractic and suggested that defendant seek medical attention, she "persistently" went to a chiropractor where she ran up a $500 bill. Two or three times she bought rugs, and after a few months the rug would disappear. Upon inquiry defendant would say that it was at the cleaners, but plaintiff would never see it again. She would buy radios and other articles at business houses where they had open accounts, charge them, and plaintiff would get the bill but never see the purchases. She would buy things, put them in a certain basement room and lock them up, excluding everyone, including plaintiff. He said that "There is one room in my house I haven't been able to get into for 20 years." Defendant sued plaintiff for divorce in 1946. A week later plaintiff received a bill from Leppert-Roos for $1400 for a fur coat of which he knew nothing. Then a man from Lammert's Furniture Company telephoned plaintiff that defendant was in the store and wanted to buy a $1500 tea set. Plaintiff testified that she treated him "very unjust * * * pretty unfair."
The parties separated in January, 1947. Defendant filed a divorce suit against plaintiff and a suit to establish a partnership, for the appointment of a receiver and an accounting. He claimed this caused his credit to be "completely ruined"; that the credit bureau sent out reports of this litigation, and thereafter they had to pay cash for many purchases.
Douglas Dodds, President of the Pine Lawn Bank Trust Company, testified that defendant came to the bank 18 to 20 months before the trial in an agitated, upset condition and made "wild accusations" against plaintiff, called him vulgar names, stated that he had threatened her, was abusive in his language and in a physical manner, that he associated with other women, and was spending money on unmarried women; that she was jealous of two women employees of the bank, and three or four other women; that he was disloyal to his country; that all the monies collected were not being deposited in the Beldt Aquarium account, that the funds belonged partly to her, and that he was spending money injudicially. Richard Kane, an employee at the aquarium, saw defendant listening at the door on the steps leading to plaintiff's office on several occasions, and heard her arguing with plaintiff "in loud language" and swearing at him. Jack Harrison heard defendant swear at plaintiff and call him a "damn Nazi" and a son of a bitch.
Rodney Fairfield, counsel for plaintiff, testified about conferences with defendant's attorney, leading to the making of an offer to buy or sell the business for $25,000, and the preparation of Exhibit A, which was the first draft of a proposed property settlement agreement, by the terms of which defendant agreed to buy and plaintiff agreed to sell the entire business and properties for $25,000, which was never signed; that on December 26, 1947, after she had discharged her counsel, she and her husband had a conference in the witness' office, in which there was a reconciliation and an agreement that she would go back and live with him, and "stay entirely clear of the business." At this conference she conceded that she had said things in the past she should not have said, and admitted that she had no direct interest in Beldt Aquarium any more than any wife has in her husband's business.
Defendant met these pointed accusations of marital misconduct by positive denials in many instances, and in others by admissions and explanations in the nature of confession and avoidance. She categorically denied taking any property or "large sums of money" from plaintiff or from his business; denied cursing plaintiff, calling him foul names such as Nazi, or questioning his loyalty; kicking him, striking him with her fist, hitting him with a cane; refusing to sew his buttons on his clothes; refusing to cook and prepare his meals and to eat meals with him; trying to create dissension among the employees by making false statements; objecting to entertaining his friends; refusing to go with plaintiff on his week-end trips; eavesdropping on plaintiff's telephone calls; requiring the use of contraceptives; agreeing to sign a deed to the corporation of her interest in the Reynolds County property; waiving her claims to a right in the business. She denied that her house was dirty, and claimed that she kept it nice and clean and performed her household duties. She denied telling the banker Dodds that plaintiff was guilty of any improper conduct with women at the bank or referring to plaintiff in that conversation in vulgar terms.
Defendant made other responses which might be termed "quasi-denials". For instance, when asked if she took checks out of the mail for her own use, she answered "I don't think so," and testified that she "didn't recall" cashing any checks that came by mail. Neither did she "recall" whether she made imprints of keys to plaintiff's office. Concerning the "gas incident" defendant denied that she said her husband was trying to kill her, but admitted that she smelled gas and was "a little afraid * * * concerned * * * I probably did discuss it the next day." Defendant thought she was entitled to the $1400 fur coat saying "I had a business * * * we were making so much money and I had never spent any of it." Defendant explained the large sum of cash plaintiff found in her pocketbook by saying that she had received a number of $100 bills from her husband some 15 years previously; that two relatives had died leaving her money, and that when her parents' insurance "came up, they both turned it over to me." She sought to excuse her absence on trips on the ground that she "had to have some recreation and my husband wouldn't take me"; and that he did not object, but told her "Go wherever you want, you have the car." She admitted that she agreed at the time of the reconciliation to let plaintiff operate the business and that she would stay out of the office, but insisted that the agreement was that he would operate the business "for both of our interests."
She freely admitted going to the office occasionally, to look through the papers and books, that it was her business, and that she could go there if she wanted to; that she took papers, checks, and other exhibits used in the lawsuit from "our files" after the reconciliation in 1948; that she took whatever papers she needed out of his desk "because that was my business too." She had photostatic copies made of deeds, bills rendered to plaintiff by his attorneys, etc., procured from his desk. She suspected plaintiff of placing property in the name of friends as straw parties to conceal it from her, and admitted that she went to the records in the City of St. Louis and in the county seats of Dent, Reynolds, Montgomery and Jefferson Counties to search the records for conveyances to his friends. Her "intuition" told her that her husband was the real owner of the Reynolds County property and that the other three stockholders in the corporation had no real interest. She admitted that she was "always changing locks" and that she signed a receipt for the contents of her pocketbook showing that she had 63 keys in it.
At the close of plaintiff's case defendant took the offensive and leveled these complaints against her husband; that he was quarrelsome, picked faults with her; refused to take her on trips, or other places; said he was going on the trips "just to get away from me"; wouldn't talk much during the last six months; when asked a question would say "Shut up"; that his friends always came first; that he beat her one time on the head and shoulders, as a result of which she had to go to the doctor; that in July, 1947 he tried to push her off the roof, and took her pocketbook away from her and went through its contents; that he took a bar of soap and said "I will get this all the way down your throat" and almost knocked her teeth out; that while on crutches following a broken leg, in September, 1943, he rushed at her and hit her causing her to fall to the floor, then failed to assist her to her feet, as a result of which she was "deathly sick" for days afterward; that in 1948 he lunged at her, hit her, threw her with great force over a bed, which broke in two, and in the melee she hit her leg on the dresser, causing her to be terribly shaken up, and to have a headache for several days; that in 1941 he struck her "with all the force he could" on her cheek, leaving fingerprints; that he cursed her; that he picked up a dish of food and threw it at her, hitting her shoulder and drawing blood; that he slung a plate of food and a glass of ice tea all the way across the kitchen, breaking it into pieces; that he spent a lot of time at Salmon Lake around the house of Martha Kraus; that plaintiff "went there every day and her husband wasn't there"; that plaintiff "forbade" her from having children, saying "he didn't want any children because if he had them they would have to fight his people in the war."
Edith Locke and Mrs. Ted Hughes vouched for defendant's good character, and corroborated defendant's contention that she worked hard at the aquarium. Mrs. Hughes, a next door neighbor for 8 or 9 years, from 1937 to 1946 never observed the parties quarreling or fighting. Franklin Huster, an employee at the aquarium from 1931 to 1934, testified that defendant worked in the office, received and opened mail, prepared deposits, answered the phone, worked at the retail store, gave orders to the employees and got out catalogs; that the parties "got along as well as any couple could"; that there were no arguments or fights and their relationship was normal, good. Defendant's sister, Mrs. R. A. Darby, testified that about 7 years before the trial plaintiff, discussing with her his success, stated that the nursery was worth $10,000 and that "Opal has made 50 ¢ of every dollar I have made." During the 12 years she lived next door to the aquarium she observed her sister working along with plaintiff "far beyond her endurance," day and night, in the retail business, the greenhouse, filing orders, attending the telephone, and mailing out catalogs. Withal her house was well kept and clean, and she did the cooking.
Without unnecessarily extending this opinion, it may be said that plaintiff took up every substantial charge made by defendant, one by one, and specifically and categorically denied every material accusation of marital misconduct she made against him.
The evidence showed that the parties own jointly the hatchery property on How dershell Road in St. Louis County, consisting of six greenhouses, 600 fish tanks and 75 to 80 concrete pools. This property originally cost $25,000. No present value was placed on it although plaintiff testified that he would not give $50,000 for it, and would take $25,000 for his half interest. Other properties owned jointly by them are the homestead at 2140 Edmond Avenue, worth $5,000 at trial time; the Crescent Avenue lots and improvements worth "maybe $10,000"; and 52 acres in Montgomery County for which plaintiff paid $1,522 in 1933. He was more recently offered $3,000. Plaintiff owns in his separate name a 1/4 interest in 160 acres of land in Reynolds County (the whole tract cost $6,000); 22 acres in Jefferson County, for which he put up $10,000 cash on a $18,000 purchase price; and 4 acres on Lindbergh Road, for which he paid $2,750 in 1946.
About 8 months after the separation in 1947 defendant telephoned plaintiff for a meeting to "talk things over." He went to the hotel where she was staying, and they discussed their affairs, after which there were several more meetings or "dates". The parties, through their lawyers, made efforts to arrive at a property settlement and disposition of the pending litigation, during the course of which the paper writing, Exhibit A, supra, was drawn. In these negotiations plaintiff offered to "take $25,000 and walk out," leaving her the entire fish business, equipment, machinery and land, "including every drop of water in the greenhouse." He also offered to pay her $25,000 as a lump sum settlement. Finally they agreed to "patch things up." She elected instead to go back to him but, according to plaintiff, he told her that unless she agreed to stay out of the business he would not take her back, and said that "she agreed not to interfere with the business any more * * * be a good wife * * * come back and live with me * * * and leave me alone in the operation of that business * * * not interfere with the employees."
It was further agreed, according to plaintiff, that the business would be incorporated, to "solve our troubles." On December 26, 1947 the parties met in the law office of plaintiff's counsel, made their final agreements, kissed and went out "arm in arm," resuming cohabitation in January, 1948.
Plaintiff testified that three weeks later defendant gave him to understand that her only reason for coming back was that she was "out on a limb"; that if plaintiff thought he was being mistreated, it was all right if he left, and that she would help him pack even if it was 3:00 o'clock in the morning; that the sooner he "got out" the better. He said she treated him "as mean as anybody could be treated in order to get me out of the house"; would not prepare meals for him; ate with him "very seldom," and when he would be delayed in getting home for meals he would find the defendant had eaten, his food was cold, and he would be obliged to warm up the food and often prepare his own meals. He further testified that defendant did not "live up to her agreement" not to enter the business premises. On July 22, 1948 he came home and found defendant's note on the kitchen table: "I am going to the country for a few days. There is food in the ice box for Mickey." Mickey was the cat. There was nothing in the ice box for plaintiff to eat. Disgusted, he packed up, left, and filed suit for divorce three days later. He said that he had given her no occasion to leave. After the final separation defendant was paid $150 a month as "rent" on the properties she jointly owns with plaintiff.
This evidence presented to the Chancellor sharp, well-defined issues of fact. There was a definite cleavage, a direct conflict of testimony on practically every charge and countercharge.
If plaintiff was telling the truth there is no doubt that he was subjected to indignities rendering his condition intolerable, because the acts and words he attributes to defendant amount to unmerited contempt, and manifest incivility, alienation and estrangement and settled hatred. Her uncivil and ungenerous attitude toward his friends, annoying, distracting and aggravating interference with the conduct of his business, unfounded accusations of infidelity, unreasoning suspicions that he was concealing property from her, incredible accusations that he intended to kill her; verbal and physical assaults upon him; unexplained absences from home, and her lack of interest in the maintenance of a home in which he could find peace and contentment and take pride, together with the numerous other indictments of her marital conduct, add up to "injury accompanied with insult and amounting to a species of cruelty to the mind." Elliston v. Elliston, Mo.App., 215 S.W.2d 63, loc. cit. 69. This set of facts, if given credence, is far more serious than that of "mere incidents of minor quarreling, * * * complaints of occurrences that normally occur in married life," or mere wrangling and exhibitions of temper due to the lack of a conciliatory spirit in both parties, as appellant would have us find. It constitutes such an accumulation of marital dereliction as to destroy the basic foundation of this marriage, and to entitle plaintiff to relief in the divorce court.
On the other hand, if this history of the marriage is to be rejected as untrue, and the version of defendant accepted as the truth, defendant is entitled to the relief which she seeks, upon the basis of many kinds and types of physical and mental assault on her dignity as a human being.
The case resolves itself into one decisive question: Who is telling the truth? Peculiarly appropriate is the application of the rule that where the evidence is conflicting and irreconcilable, great deference will be paid to the finding of the trial judge. Fite v. Fite, Mo.App., 196 S.W.2d 65, loc. cit. 70; Williamson v. Williamson, Mo.App., 164 S.W.2d 606. This case was tried by an experienced and competent judge. Under the circumstances revealed by this record his determination that the truth lay in the mouth of the plaintiff is highly influential in the determination of the merit of this appeal. A close scrutiny of this record reveals many supporting reasons for the result he reached. Plaintiff's testimony was reasonable. His language was accurate and factual and did not consist principally of conclusions. His story was credible. It had the ring of sincerity and truth. His language was restrained. He conceded facts that were unfavorable to him. Defendant's testimony, however, is at times inconsistent, overdrawn, exaggerated and incredible. She made very damaging admissions against her interest, and her explanations were unsatisfactory.
Taking the evidence as a whole we are perfectly satisfied that the trial court reached the proper conclusion on this evidence; that in all justice and fairness plaintiff must be declared the innocent and injured party.
In support of her contention that plaintiff's evidence does not make a case of indignities in the statutory sense defendant cites the cases of Obermire v. Obermire, Mo.App., 232 S.W.2d 205; Haushalter v. Haushalter, Mo.App., 197 S.W.2d 703; Phillips v. Phillips, Mo.App., 219 S.W.2d 249; and Fawkes v. Fawkes, Mo. App., 204 S.W.2d 132. We have carefully examined the facts in these cases and find that they are not analogous or comparable.
Defendant also cites cases bearing out the rule of law that in order to sustain a decree of divorce the prevailing party must prove his case by a clear preponderance of the evidence. Under the evidence in the case at bar we think that plaintiff discharged that burden.
No error appearing, the Commissioner recommends that the judgment of the trial court be affirmed.
The foregoing opinion of HOUSER, C., is adopted as the opinion of the court.
The judgment of the trial court is, accordingly, affirmed.
ANDERSON, P. J., and McCULLEN and BENNICK, JJ., concur.