Opinion
No. 28486.
February 17, 1953.
APPEAL FROM THE CIRCUIT COURT, JEFFERSON COUNTY, EDWARD T. EVERSOLE, J.
Thurman, Nixon Blackwell, Hillsboro, for appellant.
Ennis Saunders, Festus, for respondent.
This is an action for divorce in which the defendant filed a cross bill. The trial court entered a decree for the plaintiff on her petition and dismissed the defendant's cross bill. The defendant prosecutes this appeal.
The only evidence presented in this case is the testimony of the plaintiff and the defendant.
The plaintiff testified that she married the defendant in 1945. At that time he was suffering from an injury to one of his legs. He was unemployed, but he was drawing $40 every two weeks as unemployment compensation and a pension of $44 a month. The plaintiff was employed as a civil service worker making about $2300 a year. Shortly prior to their marriage she bought a house in St. Louis County, Missouri, and it was there that the parties first lived as husband and wife. Plaintiff continued to work and the defendant had intermittent jobs working for a while in a tavern and at another time in a grocery store, but he held no job for longer than three months.
Defendant drank excessively and on one occasion spent on drink, money that she had left with him for the purchase of meat. He had some mustering out pay which he spent in a like manner. He used $100 of it for a trip to Festus, leaving on Thursday, and when the plaintiff joined him there on Saturday he was intoxicated and the $100 was gone.
According to the plaintiff the defendant hold her that he could get work in Festus, Missouri, at a glass company, and by reason of this she gave up her position, sold her house and they moved to Festus. The sale of the house in St. Louis County netted her $2,000, which she used as a down payment on the purchase of a home in Festus.
They took title to the Festus house as tenants by the entirety. This house was later sold and they obtained from the sale $2700 cash, most of which was paid down on a new house and the defendant used $200 of it to buy a truck. He said he was going into the chicken business but never did. They lived in the vicinity of Festus for about three years and plaintiff's father lived with them and contributed part of his pension toward household expenses. During this time the defendant was only employed over a total time of six months according to plaintiff. She said he had offers of work but declined them, and that to one person offering him employment he said, "I don't have to work. We are getting along all right without it."
In July of 1948, defendant obtained the custody of his eight-year-old daughter by a former marriage, and his pension was then increased to $55. It was later increased by a general raise to $60. He made payments on his truck and at one time made a payment of $10 on a television set. He also made nine payments of $15 each on the house, but beyond this he made no contribution. The plaintiff paid all household expenses other than those mentioned and paid $30 a month on the last house that they bought. She also bore the expenses of supporting his child.
Plaintiff testified that defendant told her that she did not suit him and that he was going to look for someone else. She said that he struck her on numerous occasions and at times she struck back in defense of herself. At one time when he hit her she called the police and while she was in the act of telephoning for the police he struck her in the back of the neck with his first and she has been under medical care since then from the injury inflicted by the blow. On this occasion she had him arrested and the defendant was later fined on a plea of guilty to the charges that she made. She stated that defendant spent all of his money on beer and that he had frequent parties at their home where beer, furnished by him and some brought by his guests, was consumed. On July 22, 1951, she left the defendant and since that time he has been employed as a cab driver.
The defendant testified that he had difficulty in getting around owing to his leg injury and that he could not work and be on his feet. He stated that he gave his wife most of his pension and his mustering out pay. He also said that he was no drunkard and that he confined his drinking chiefly to beer. He said that he cooked meals while his wife was working. As to her he testified that she was quarrelsome and complaining and that she struck him on occasions. He stated that at one time her father restrained her when she was hitting him. He also testified that once she kicked him on his injured leg. He said that he thought he had only hit her on about three occasions.
As to his plea of guilty before the magistrate at the time plaintiff had him arrested, defendant testified that he entered the plea through ignorance of the law as he had never been arrested before. He testified that since their separation he was occupying the house that they had bought and that he had made no payments on it.
Plaintiff had previously testified that the only time she ever kicked the defendant on his injured leg was when he had pushed her backward over the arm of a davenette and her feet went up striking his leg. On rebuttal she testified that the one occasion upon which her father entered into their fights, occurred when the defendant came home drunk and knocked her to the floor. She called for help and with the aid of her father put him out of the house.
It was upon this evidence that the trial court awarded a decree to the plaintiff, and the first point urged on appeal is that both parties were at fault and that therefore neither is entitled to a divorce. As authority for this we are cited to Gibson v. Gibson, Mo.App., 16 S.W.2d 646; Ream v. Ream, Mo.App., 246 S.W. 611; Holschbach v. Holschbach, 134 Mo.App. 247, 114 S.W. 1035. These cases simply hold that under the particular evidence passed upon, both parties to the marriage appeared to have been guilty of misconduct toward the other and consequently neither party was entitled to a decree. It is quite obviously true that the relief afforded by divorce is reserved for the innocent who have been injured and that neither spouse is innocent where both are equally guilty of indignities toward each other. Holmes v. Holmes, Mo.App., 251 S.W.2d 390; Greenbury v. Greenbury, Mo. App., 223 S.W.2d 153.
There can be little doubt that the plaintiff's evidence of the beatings she received at the hands of her husband, his indolence and abuse would be sufficient to sustain the decree of divorce granted her if it could be said that she was the innocent party. Thus the first point raised is closely allied to the second contention of the defendant which is that the court erred in granting a decree if plaintiff did not show that she was the innocent as well as the injured party. The term "innocent party", does not mean that the law demands that a party's conduct is above reproach. Rowland v. Rowland, Mo.App. 227 S.W.2d 478. But, on the contrary, a party to a divorce proceeding will not be denied a decree on the ground that she is not the innocent party unless her conduct was such as to entitle her husband prima facie to a divorce had he been free from blame. Rowland v. Rowland, supra; Garton v. Garton, Mo.App., 246 S.W.2d 832. Nor would the plaintiff be deprived of her status of the innocent party if she was goaded into the acts complained of by the defendant's own conduct. Holmes v. Holmes, supra; Scheer v. Scheer, Mo.App., 238 S.W.2d 865. Consequently, it is evident that if the plaintiff never struck the defendant except in defense of herself she was innocent as to the defendant's charge that she struck him.
Whether plaintiff did or did not offer violence to the defendant as an aggressor can only be determined by deciding which party was telling the truth. The same is true as to the other charges made. Thus we are confronted with the question of credibility of the witnesses for we have a direct conflict in much of their testimony. In such cases we defer to the trial court, and it is evident that the trial court must have believed the plaintiff. Padgett v. Padgett, Mo.App., 231 S.W.2d 207; Scheer v. Scheer, supra.
The only other point raised is that the evidence was not sufficient to sustain a decree for the plaintiff, but in view of the foregoing discussion we need not further elaborate upon the evidence which fully supported the decree awarded.
It is therefore the recommendation of the Commissioner that the judgment be affirmed.
The foregoing opinion of WOLFE, C., is adopted as the opinion of the Court.
The judgment of the circuit court is accordingly affirmed.
BENNICK. P. J., and ANDERSON and IVAN LEE HOLT, Jr., JJ., concur.