Opinion
No. 27836.
July 18, 1950.
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, WILLIAM S. CONNOR, J.
Frank Mashak, St. Louis, for defendant-appellant.
Jack Schiff and Josephus M. Todd, both of St. Louis, for plaintiff-respondent.
Suit for divorce was instituted by the husband (respondent) against the wife (appellant) on November 12, 1948. The plaintiff's petition was based on alleged indignities such as to render his condition intolerable. The defendant filed an answer admitting the marriage on December 12, 1931, the residence of the plaintiff being in the City of St. Louis, the birth of a daughter born July 14, 1932, and denying all other allegations of the petition. The defendant also filed a cross bill alleging indignities in the past year such as to render her condition intolerable, and that on July 17, 1948, the plaintiff without just cause deserted and abandoned her, and prayed a judgment for separate maintenance. Both plaintiff and defendant asked for custody of the minor daughter. After trial the court entered a judgment that plaintiff was not an injured and innocent party, and not entitled to the relief prayed for, and dismissed the petition, and further found that defendant was not entitled to the relief prayed for in her cross bill for separate maintenance, and dismissed the same. The defendant after unavailing motion for new trial has appealed from the judgment and decree.
Plaintiff and defendant were married in Hannibal, Missouri, where they lived until 1946 when they moved to St. Louis County. Early in their married life they bought a lot of ground in Hannibal on which they had erected a home. This property was sold in 1946 and they purchased a duplex residence in St. Louis County, one side of which they occupied as their home and the other side of which was rented to others at $41 a month, the defendant receiving the rentals for the last year before the trial of the case. During the entire time they lived in Hannibal the wife worked in a shoe factory and earned $8 a week during bad years, and during the boom period of the war she earned around $40 or $50 a week, and since coming to St. Louis County she has done some work as a "baby sitter" and as a nurse, the earnings for such work not being shown. The husband is a traveling salesman and in 1948 had a "take home" pay of $3500. They had a joint bank account at the time of the separation of $2,065.65, all of which the wife withdrew except $5.65. The husband had just before her withdrawal of the money in their joint account started a joint bank account with his brother, to which he deposited $1,050. They also had about $2,000 in Series E United States Savings Bonds, all of which were in their joint names except about $200 in the name of the daughter. The defendant took charge of and now has possession of the bonds. When they separated the plaintiff and his daughter (at the time of the trial 16 1/2 years old) moved to a furnished apartment in the City of St. Louis.
The testimony of both plaintiff and defendant is largely in the nature of conclusions rather than facts.
Plaintiff testified that his wife nagged, quarreled and found fault with him without reason; that she complained when he reproved the daughter for playing "hooky" from school; that they had quarreled for about seventeen years; they argued about the location of the house they built in Hannibal; they quarreled about his wife's indifference to him; that he had no complaints as to her performance of her duties as a wife; that in his work he traveled over five states, and he had gone out with other women but did nothing wrong; that his wife refused to cohabit with him; that when he left the home he called the daughter into the room in defendant's presence and asked her if she desired to stay with her mother or go with him and the daughter said she wanted to go with him.
The defendant wife testified that in her opinion her husband's charges of constantly quarreling, nagging and criticism were not true; that she did occasionally do so but the main difficulty was that her husband had a bad temper, and usually started the quarrels; that during the last six months they lived together he seldom wrote to her when he was away on trips; that he questioned her appearance and wanted her to look real nice when they went out but did not want to spend money on clothes; that he said she was too skinny for him, and he wanted someone fatter; that he was sulky and hard to get along with; that he would brag about his associations with other women; on one occasion she told him she had gotten ahold of some letters relative to his running around with a woman in Memphis, and he said he did not see why she should pick on this particular one as he had been out with three or four others as much as with that one; she saw him out at lunch with a girl twelve or fifteen times in Hannibal and admonished him to be more careful as it was causing her embarrassment; that they moved to St. Louis in 1946 after he promised to quit running around with other women; after he kept bragging about other women she believed it unsafe to cohabit with him especially after he told her he was afraid he would bring her a social disease; that he told her he wanted a divorce, that he was tired of her and did not love her any more, and to take her clothes and get out and get a divorce, and she told him she had worked too hard and didn't intend to move out; that she bought most of the groceries for eleven years and all of her own clothes and most of the clothes for the daughter; that on numerous occasions her husband told her he was an atheist; that once when he lost a card game he shook her real hard in the presence of her sister and her sister's husband; that he said he would not give her any support, and would not buy the daughter anything if she had her custody; that he would leave the state and go to a foreign country; that she left her husband for about a week in 1935 because he was going out three or four nights a week leaving her alone.
Anne Brown, a witness called by defendant, had visited with the Obermires and thought they got along like an average married couple.
John Dill, a brother-in-law of Obermire, testified to seeing Obermire with a girl on the street in 1934. He further testified that about six years ago Obermire told him of having had intercourse with two girls on one occasion, and sharing his bed with a girl one night in Cincinnati. Dill's testimony was emphatically denied by plaintiff.
Margaret Harpole visited in the Obermire home and said that Obermire's conduct towards his wife was good, and she was nice to him; "they were both nice people."
The law is well settled that in a suit for separate maintenance a wife cannot prevail unless she proves facts such as would entitle her to a divorce if that were the relief she was seeking. Meredith v. Meredith, Mo.App., 166 S.W.2d 221, and cases therein cited. And she must prove two equal essential elements; first, that her husband has abandoned her without good cause, and, second, that he has suffered or neglected to maintain and provide for her. Elsey v. Elsey, Mo.App., 297 S.W. 978; Hoynes v. Hoynes, Mo.App., 218 S.W.2d 823; Knese v. Knese, Mo.App., 217 S.W.2d 394; Junge v. Junge, Mo.App., 211 S.W.2d 733. In this case the wife sought to justify her suit for separate maintenance on the theory that she had good reasons to divorce her husband if she had chosen that relief. The grounds for the cross bill were alleged to be indignities such as to render her condition intolerable, and that her husband had abandoned her without good reason and neglected to maintain and provide for her. The burden was on the wife to sustain those charges.
Her testimony is not at all convincing that she was the injured and innocent party to their frequent quarrels. She says that in her opinion her husband's charges against her of constantly quarreling, nagging and criticism were not true, and then she says further that she had occasionally started the quarrels, but usually he started them. She says that during the last six months he seldom wrote to her when he was away on trips, but she fails to say how long he was away on his trips as a salesman or whether he had ever in prior years written to her when he was away, or whether she ever asked him to write to her when away or even wanted him to do so. She says her husband wanted her to look real nice when they went out but did not want to spend money on clothes, but she does not say she was not supplied with an ample wardrobe. She says that her husband said she was too skinny for him and he wanted someone fatter, but in what connection such statement was made and the occasion she does not say. She says he was sulky and hard to get along with, but that is a mere conclusion unless instances were given from which the court could determine whether he was sulky and hard to get along with. She says he would brag about his associations with other women, but makes that statement without out telling whether such other women were of bad or good character, or whether such associations were immoral or a casual meeting with female acquaintances of good reputation and on the public street, and her only admonishment to him was to be more careful as it was causing her embarrassment. She says he told her he was an atheist, but she does not tell what her own moral or spiritual views are in order to show whether such statement was hurtful to her feelings. She says that he told her he was afraid he would bring her a social disease and therefore she refused to cohabit further with him, and he denies he made such a statement. But whether he did or not, she certainly did not believe he meant it, else she would have charged him with infidelity and adultery, which would have been a ground for divorce. Nowhere in her pleading or proof does she charge her husband with infidelity except by insinuation, nor does she say that he associated with any woman of bad character. The only suggestion in the record of immoral associations with women is the testimony of John Dill, who said that plaintiff bragged to him of his illicit association with women on two occasions. Dill's story which is emphatically denied by plaintiff is so unlikely as to verge on absurdity. It is not likely that a man would boast to his brother-in-law of such conduct. If his story were true and believed by defendant, she would certainly have charged plaintiff with adultery, a good and statutory reason for divorce, or separate maintenance, instead of resting her case on the nebulous charge of indignities and abandonment without good cause.
Taking the testimony as a whole it leads to the conclusion that the defendant wife ceased cohabiting with her husband without sufficient cause, and that he left the home without sufficient cause. The fault was as much that of the one as the other, and neither showed the slightest effort at conciliation. "Indignities" in the sense of the divorce statute are not shown by mere wranglings and exhibitions of temper due to lack in both parties of conciliatory spirit. Chapman v. Chapman, Mo.App., 230 S.W.2d 149; Haushalter v. Haushalter, Mo.App., 197 S.W.2d 703; Fawkes v. Fawkes, Mo.App., 204 S.W.2d 132, and State ex rel. Fawkes v. Bland, 357 Mo. 634, 210 S.W.2d 31.
And then as to the element of failure or refusal of the husband to support the wife. When plaintiff and his daughter left the home, he did not leave his wife without means of support. She remained in control and sole possession of the home, one-half of which is rented for $41 a month, which rent she had been collecting for a year before the separation. There is some intimation that the home was not fully paid for, but what such indebtedness is, if any there is, is not shown. Also she withdrew over $2,000 from the joint bank account, and said she has $1300 or $1400 at the time of the trial. Also she has about $1800 Series E bonds registered in their joint names, and which can be cashed by her. And so even though she may have reason to fear the future, at the time of filing her cross bill and of the trial she was not left without means of support.
The case was tried before an able and experienced judge, who heard the conflicting testimony of the plaintiff and defendant, and with that deference we should have for his views as expressed in the decree, as well as our own careful reading of the testimony as preserved in the transcript, we conclude that the decree should be upheld, dismissing the plaintiff's petition (from which plaintiff did not appeal), and dismissing defendant's cross bill.
Ordered that the judgment and decree of the circuit court be affirmed.
ANDERSON, P. J., and McCULLEN, J., concur.