Opinion
No. 6900.
May 26, 1950.
APPEAL FROM THE CIRCUIT COURT, RIPLEY COUNTY, RANDOLPH H. WEBER, J.
Chas. B. Butler, Doniphan, for appellant.
No appearance for respondent.
This is an action for divorce filed in the Circuit Court of Ripley County, Missouri, December 13th, 1948.
Plaintiff's petition alleged that she faithfully demeaned herself and discharged her duties as wife of the defendant, but defendant, disregarding his duties as her husband, rendered to her such indignities as to make her condition as his wife intolerable.
She stated that defendant refused to properly support and care for her and her minor children; that he struck and beat, cursed and abused her and her children and called them such names as would be improper to set out in the petition. The petition stated that defendant never provided a home for plaintiff but forced her to live with defendant's parents. On different occasions he tried to make her leave home and threatened the lives of plaintiff and her children. The petition alleged that plaintiff, although pregnant by defendant and unable to work, was forced to do hard manual labor by the defendant; that he tried to make her take a job in town and he finally left plaintiff in the city of Doniphan and refused her the right to go home to her children and has, since that time, refused to let her see them.
The petition alleged that there was born of the marriage three children, John Harmon, age 4 years; Clifton Lee, age 2 years and Rosie Ellen, age 1 year.
Prior to the final judgment another child was born and the petition was amended to include it.
The prayer of the petition was for divorce and care and custody of the minor children and that defendant be ordered to pay plaintiff such sums of money as the court deemed necessary for support of self and children.
Defendant's answer was a general denial.
On the 8th day of July, 1949, the court rendered judgment for the plaintiff, found that the allegations in her petition were true in every respect, that the defendant offered plaintiff such indignities as to render her condition in life intolerable and that she was the injured and innocent party. The court decreed the bonds of matrimony existing between plaintiff and defendant be dissolved and awarded care and custody of four minor children, born of the marriage, to plaintiff.
The court granted plaintiff $15.00 per month alimony and $60.00 per month for the education and maintenance of the minor children, same to be paid on the last day of this and each month thereafter. The court allowed plaintiff an additional sum of $50.00 as attorney fee.
In the judgment the court made no order touching visitation of the children by the defendant pending defendant's compliance with its orders touching support and maintenance.
On the 3rd day of August, 1949, defendant filed a motion to amend the judgment and in this motion he sets out four reasons for such amendment:
"1. To deny plaintiff a decree of divorce for the reason that the weight of the evidence shows that she is not entitled to a decree.
"2. To amend the judgment by awarding the custody of the three older children to defendant or to their paternal grandparents, "as it would be to the best interest of said children to so do.
"3. To amend the judgment by giving the defendant the right to visit his children at suitable times and have the children visit him.
"4. To amend the judgment awarding alimony to plaintiff and for the support of her children to an amount that the defendant is able to earn, and to hear testimony concerning his physical condition concerning his earning ability."
Defendant filed a motion for new trial on the same day setting up the same grounds as he set out in his motion to amend.
On the 23rd day of August, 1949, the court denied the motion to amend and overruled the motion for new trial.
We will refer to plaintiff as respondent and defendant as appellant in this opinion.
Under points and authorities, appellant makes 8 different assignments of error as follows:
"I. In divorce proceedings the appellant court must review the evidence and make its own findings as to facts.
"II. When a divorce shall be adjudged, the court shall make such order touching the alimony and maintenance of the wife, and the care and the custody and maintenance of them, or any of them, as from the circumstances of the parties and the nature of the case shall be reasonable.
"III. Allowance of alimony and maintenance of wife and children is addressed to the sound discretion of the court, to be exercised under established principles and in view of the circumstances of each party, such as the ability of the husband to pay and the condition and means of the wife.
"IV. That the verdict is against the evidence and the weight thereof.
"V. That the verdict is against the law as applied to the evidence in this case.
"VI. That for the best interest of the three older children the court erred in awarding them to plaintiff, respondent herein.
"VII. That the court erred in refusing to appellant the right to visit the children and have the children visit him.
"VIII. That the court erred in awarding alimony and support for the children to plaintiff, respondent herein, far in excess of the ability of the defendant herein appellant to earn the same."
Appellant's first assignment of error states an abstract proposition of law. We fully agree with this statement of the law.
Assignment No. II. also states an abstract proposition of law with which we agree.
Appellant's assignment No. III., likewise, makes a correct statement of the law.
None of the first three assignments of error complain that the court erred in following the law set out therein.
Assignment No. IV. complains of the sufficiency of the evidence to support the verdict.
We, here, state such part of the evidence as we believe necessary to decide this issue.
The respondent testified she was married to appellant September 27th, 1943, and final separation occurred December 7th, 1948. She stated, at the time of marriage to appellant, she was of the age of fifteen years and he twenty two years; of this marriage four children were born, the oldest, at date of trial, was four years, the youngest one month. Respondent testified that appellant took her to the home of his parents, a four-room house on an eighty acre farm; that she was forced to do manual labor by working in the woods, cutting timber and at a sawmill. She stated she made a regular hand sawing timber; that she was required to do this work by appellant and his mother, even when she was pregnant, up to the very time of the birth of her children. She stated she did this work because she had to.
Respondent testified, in relation to the birth of her children, that appellant did not get a doctor for her at the birth of the second and third child and that after the birth of the third child she was seriously ill, yet she received no medical attention.
Respondent's testimony showed that appellant beat and slapped her, cursed and used vile language toward her, almost continuously during the marriage. She stated appellant struck her with his fist, and anything else he could get hold of; one time he hit her with a searchlight, the scar of which she now carries. She stated that shortly before the separation, appellant pinched her with a pair of pliers, leaving a scar, which she now has.
Respondent testified that appellant tried to force her to leave him and leave her children with his parents; that he took her to Poplar Bluff and there went to a lawyer and brought an action for divorce; that he brought her back to Doniphan, where he had the papers served on her by the sheriff. She stated he then took her back to Poplar Bluff, purchased a railroad ticket to send her to the State of Washington, to her people, and gave her $8.00 for expenses. She stated she refused to go and came back to Doniphan to fight for her children; that when she came back her husband took her back home and dismissed his divorce action. Respondent stated that, at the time of her separation, appellant took her to Doniphan, rented a room and attempted to get her a job at different restaurants; that he failed because she had a finger which she had badly cut with an axe while chopping wood. She stated appellant rented a room and the next morning left her and went back home; that she asked him to let her go back to her children with him but he refused her. She testified appellant wanted her to let his parents adopt the three oldest children, which she refused. She stated, after appellant left, she got hold of her mother and went to the home of her grandmother.
Respondent testified that during her five years of married life, appellant bought her no clothing; that her step-mother did buy her some bolt goods to make some dresses and that the balance of the clothing was given to her by her people. She stated that appellant worked with his father and permitted his father to take all of the money earned and that the only money appellant ever had was what his father gave to him; that she never had any money. She stated that there was about eight acres of cleared land on the farm and they had a garage and did garage work for others; that they sold wood in town and they raised hogs and cattle.
Respondent testified that she was not allowed to go anywhere or visit her friends. She testified that appellant drank, got drunk, that his father drank and got drunk and that much profanity was used in the home in the presence of the children. She testified appellant and his father, both, gave the little children whiskey, wine and beer to drink.
Many witnesses swore to respondent's good reputation as being a good, moral woman.
The testimony of appellant's father, in defense, is that of a boastful overbearing ruler. He admitted drinking, admitted giving intoxicating liquor to these little children, admitted controlling all of the earnings of appellant but stated that he gave them money whenever they asked for it.
Appellant denied most of the allegations in respondent's petition but admitted that his father took all of his earnings; that whenever he wanted to spend any money he went to his father to get it, and then testified that every time his wife wanted a dollar, he had it in his pocket. He testified that when the separation occurred he had just gotten a two-year contract with a stave mill to handle all of their wood and had taken the tractor and machinery over there with which to do the work. He stated that his wife wanted to live with his parents; that he was able to make a living for her and able to support his family and he boasted that he supported them far better than anybody else in the community, until the court made a temporary order giving the custody of the smallest child to the mother and ordering him to pay for the support thereof. On a motion to modify the judgment, he testified he wasn't able to do anything or earn any money; that he had flat feet, a bad heart and other ailments. His doctor testified in this hearing, that he was not a fit person to have custody of the children. His conduct was so vicious in the trial of the case that the court had to fine him and sentence him to jail for thirty days for contempt of court.
At the hearing of the motion to amend the judgment, appellant, his father, and mother, testified that respondent came to their home and there, in their presence, in the kitchen, stated that the reason she would not come back to appellant was that her last child didn't belong to appellant. There was absolutely no evidence to justify such unwarranted attack upon the reputation of respondent.
We believe the court was fully justified, under this disgraceful attempt, on the part of appellant and his parents, to deceive the court by false accusations against his wife, the mother of appellant's children and the children which the grandparents are seeking custody of and claiming to be fit persons to care for and raise, in denying visitation to the husband and in granting respondent the custody of the children.
This testimony convinces us that appellant and his parents would stoop to any kind of conduct to accomplish the purpose they desired.
Combining appellant's unwarranted attack upon the reputation of the mother of his children with his boastful admission that he gave to his little children, four years old and younger, intoxicating liquor, which made them act like they were drunk, and respondent's testimony that appellant beat her and threatened her life, made her saw wood for the sawmill, subjected her to the abuse of his parents, refused to provide her a home away from them and, after the court entered a judgment requiring him to support his children, he failed and refused to comply therewith, we believe that the evidence in the case fully justifies the finding of the trial court that respondent was the innocent and injured party and that the care and custody of these minor children should be placed in her control.
Assignment No. V. has been fully covered in our opinion under assignment No. IV.
Under assignment VI., we believe the court was justified in finding both appellant and his parents morally unfit to care for and have these children in their custody.
Under assignment VII. we, likewise, find no merit. The trial court heard the testimony, observed the conduct and behavior of the appellant and we will not disturb his findings.
Under assignment VIII., we find the trial court was fully justified under the facts, in granting alimony to respondent and $60.00 a month support for four minor children.
Judgment affirmed.
VANDEVENTER, P. J., and BLAIR, J., concur.