Opinion
No. 21559.
May 30, 1951.
APPEAL FROM THE CIRCUIT COURT, MILLER COUNTY, SAM C. BLAIR, J.
Jackson C. Stanton, Tuscumbia, Harry H. Kay, Eldon, for appellant.
H. M. Atwell, Eldon, for respondent.
This is an action for divorce on account of indignities alleged to have rendered plaintiff's condition intolerable. A decree was granted plaintiff. She was also awarded custody of two minor children born of the marriage and $70 per month for their support. Defendant has appealed.
Plaintiff and defendant were married on April 8, 1941, and lived together until October 24, 1949. At the time of the trial plaintiff was 38 years of age, defendant 57. Each had been married before. Plaintiff's former marriage terminated by the death of her husband, defendant's by divorce. Plaintiff had two children, 8 and 12 years of age by her former marriage. Defendant also had two children by his former marriage, but they did not live with him. The two children born of the marriage of plaintiff and defendant were 6 and 2 1/2 years of age at the time of the trial.
At the time of the marriage defendant owned a farm consisting of 237 acres upon which there was a small mortgage. He also had some livestock and farm machinery. Plaintiff had about $2,000 in money, some furniture, a few head of livestock and a small farm. She later sold the farm for $1,428 and also received about $900 from her mother's estate.
After the marriage plaintiff went to the farm home of defendant with her children. The farm house was in "bad shape and not fit to live in." Plaintiff took her livestock and farm machinery to this farm home. She paid off the mortgage on defendant's farm out of her own funds, redecorated the house at her own expense, helped saw logs, plowed in the fields, turned concrete, and did a man's work on the farm.
Defendant worked at his carpenter trade for neighbors and earned $1 to $1.10 per hour, sold livestock and acquired funds which he put in the bank but, according to plaintiff, required her to pay for the necessities of the family out of her own funds. She said defendant always insisted he had no money and when plaintiff suggested purchasing something for the home defendant would say. "you can pay the bill." She testified: "We have never agreed. I couldn't have lived with him for two months if I hadn't had the two little children. He puts his stock above everything"; that on different occasions he had asked her to leave and had accused her of infidelity two of three times before October 24, 1949, the date of the final separation. Her account of what occurred on that date was that defendant accused her of infidelity, cursed her and told her "to get out and take my trifling son"; that defendant hit her in the face with his fist whereupon she hit him across the back with a piece of wagon tire about three feet long and two inches wide.
Defendant's version of the incidents of the separation was: That after having eaten the noon meal he was rocking the little girl in a chair and that plaintiff was washing dishes; that he told her he wanted to ask her a question if she would promise not to get mad and "mop up" on him; upon her assurance that she would not become angry he asked her what all the talk that was going around the country meant; that he told her that she had been to Eldon to see a lawyer about suing for a divorce, whereupon she called him a liar and another vile name and started fighting him; that she knocked him over with her fist and began pulling his hair; that thereupon he scratched her face, trying to get away from her; that he broke loose and ran from the house and went first to the barn and then over to a neighbor's.
The only question before this court is whether the evidence warranted the granting of a divorce to plaintiff.
The law, as stated in defendant's brief, is that the burden of proof was upon plaintiff to show not only defendant's misconduct but also that she was an innocent party; and that indignities must consist of a continuous course of conduct, and a single act, or occasional acts, will not suffice. However, it is equally well settled that each case in which a divorce is sought on the ground of indignities must be determined on its own merits.
The testimony shows that defendant was penurious to the extent that it amounted to mental cruelty to plaintiff for a period of about four years prior to the date of final separation. It also shows that on different occasions defendant had accused plaintiff of infidelity, had ordered her to leave after calling her vile and vicious names; that just prior to the final separation defendant again accused her of being intimate with another man, struck her and called her "a damned old bitch" and "to get out and take my trifling son." This son of plaintiff by her former marriage worked on defendant's farm, received no pay, and, according to plaintiff, "He don't even get a kind word" from defendant.
As to defendant's contention that plaintiff was not an innocent party, there is no evidence showing that she at any time mistreated defendant, except that she did defend herself when assaulted by defendant just prior to the final separation. Nor does the evidence disclose any basis for defendant's accusations of infidelity on the part of plaintiff.
Several of plaintiff's neighbors testified that her reputation for morality was good.
We find that this case falls within the rule announced many times by our appellate courts that, in divorce suits, great deference should be paid to the finding of the trial court, who had the parties and witnesses before him and was in a much better position to judge of their credibility than is this court. We defer to the conclusion reached by the learned trial judge and affirm the judgment.
All concur.