Opinion
No. 27722.
April 18, 1950. Rehearing Denied May 19, 1950.
APPEAL FROM THE CIRCUIT COURT, ST. LOUIS COUNTY, AMANDUS BRACKMAN, J.
Lawrence J. McKim, St. Louis, Robert M. Zeppenfeld, St. Louis, for appellant.
Lee, Fricke Lee, St. Louis, for respondent.
Plaintiff (respondent) and defendant (appellant) were married October 31, 1936, and lived as husband and wife until their separation April 5, 1948. The first child born of the marriage died at or shortly after birth. There are three living children, namely, a boy, Dale Reynold, born January 28, 1939, a girl, Diane Adele, born September 3, 1941, and a boy, Don Robert, born May 1, 1946. The divorce action was commenced by the filing of plaintiff's petition on April 14, 1948. The petition alleged general indignities rendering the plaintiff's condition intolerable, and the answer admitted the marriage and separation, the birth of the children, the residence of plaintiff to be in St. Louis County, Missouri, and denied all other allegations in the petition. The cause was tried in the circuit court of St. Louis County on October 20, 21, 22 and 23, 1948, and submitted. On November 1, 1948, a decree was rendered granting plaintiff a divorce. The decree awarded the care and custody of the three children to plaintiff with an allowance for alimony and care of the children, and made provision for visits by the father with his children, but this part of the decree is not before us for review, appellant presenting no assignment of error thereto. Consequently, the appeal is narrowed down to the one question of whether the evidence adduced was sufficient to justify the granting of a divorce to plaintiff.
On appeal in a divorce case the entire record of the proceedings in the circuit court is before the court of appeals for hearing de novo. In all cases tried before the court without a jury, which includes divorce cases, it is provided by statute, Laws 1943, p. 388, Section 114(d), Mo. R.S.A. § 847.114(d), that, "The appellate court shall review the case upon both the law and the evidence as in suits of an equitable nature. The judgment shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." Such had long been the rule of procedure in divorce cases before this statute was enacted. Further rules of procedure in divorce cases were stated by this court in the case of Bova v. Bova, Mo.App., 135 S.W.2d 384, 385, which are peculiarly applicable here, as follows: "And we are mindful that where general indignities are relied upon, that no hard and fast rule can be applied, but each case must be determined according to its own peculiar circumstances. Kitchen v. Kitchen, Mo.App., 16 S.W.2d 621. This rule has existed throughout the history of our state. Stated in Hooper v. Hooper, 19 Mo. 355, loc. cit. 357, and adhered to in Hogsett v. Hogsett, Mo.App., 83 S.W.2d 152, 153 it is as follows: `It is impossible to lay down any rules that will apply to all cases, in determining what indignities are grounds of divorce, because they render the condition of the injured party intolerable. The habits and feelings of different persons differ so much, that treatment which would produce the deepest distress with one would make but a slight impression upon the feelings of another. It is impossible, therefore, under the statute, to specify particular acts as the indignities for which divorces may, in all cases, be granted; for it is not possible to state the effect of such acts, in rendering the condition of all persons injured intolerable. The legislature chose to leave the subject at large, and by the general words employed, evidently designed to leave each case to be determined according to its own peculiar circumstances.'"
The cases cited by both appellant and respondent bear out these established principles. So much for the law. What about the facts?
The evidence contained in a voluminous transcript is largely repetition or in regard to immaterial matters, and any attempt to state the evidence in detail here would be a useless consumption of time and space. However, we will state at some length those facts which must control the determination of whether plaintiff was and is entitled to the decree of divorce.
Over thirty witnesses testified and every one who was asked, as most of them were, said that the reputation of both Mr. and Mrs. Frankenberg, among their neighbors and friends, was good. To the credit of defendant there is no question but that he at all times provided for his wife and children, not only in comfort but in luxury. Mrs. Frankenberg herself says he was over-indulgent. They were married when Mr. Frankenberg's salary was $75 a month. He was phenomenally successful in his business as a salesman of hardware; so much so that in the year 1947 he had an income of $33,663.80, and in 1948 of $32,362.55, and on January 15, 1947, he purchased their present home at a cost of $25,000 for which he paid cash. Certainly, if all that a wife is entitled to are the comforts and luxuries that money will buy, this wife could have no complaint of her married life with her husband.
There is another side to the domestic life of this couple. They lived congenially for the first two or three years of their marriage, but Mr. Frankenberg throughout their married life was an excessive consumer of intoxicating liquor, and it was this unfortunate habit that stands out as a beacon light showing the primary cause of their unhappy life after the first few years of their marriage. For this we do not have to entirely rely upon the testimony of the several witnesses, all of whom say that Mr. Frankenberg was a "heavy drinker" but take the defendant's own admissions. For instance, in a note written to his wife at or about the time of their separation he said, "We will — we can, and we must work out our problem. If we both agree to give a little — I promise you that you will never see me drinking too much again," etc. Then on April 12, 1948, shortly after the separation, defendant wrote a letter to his wife seeking a reconciliation in which he stated, "In spite of my desire to take hard drinks now in my time of trouble — I have given up scotch and bourbon for good. This I mean, as I know I can no longer handle it." During the year 1948 at defendant's instance the minister of the church to which they belong visited their home in an effort to reconcile their troubles. It appears that at or about that time defendant made a pledge not to indulge in strong drink, and the cabinet at their home where a store of liquor was kept was locked. The pledge and the lock were both broken.
For the last several years before the separation Mr. Frankenberg was at Bradley's Gardens, a tavern, almost every night, and until it closed about midnight, and he did not get home until from 12 o'clock to 3 o'clock, long after the wife and children had retired. When he did get home he continued drinking by consuming several bottles of beer, and the maid testifies to removing the empty bottles from the kitchen every morning. No one ever saw him "intoxicated" but nearly all of the witnesses say he was a "heavy drinker". Mr. Lee, plaintiff's attorney, testified that defendant came to his office to talk with him, and asked him what the nature of his wife's complaints was, and that he told defendant that his consumption of hard liquor and his frequent intoxication seemed to be the cornerstone of their difficulty. Defendant does not deny his nightly visits to Bradley's Gardens, and justifies his late hours and sleeping next morning long after his wife and children had their breakfast by saying his work was such that he could sleep late and he did so. Regardless of specific charges of indignities, to which we will later refer, no one could read this record without concluding that defendant's love of liquor was greater than his love of home and family. And so there must be added to the list of those who have in the past wrecked their homes by the excessive and inordinate use of intoxicating liquor the name of Reynold G. Frankenberg, with space below for names of those who in the future fail to heed the warning sign.
We have here a case where the father and husband is almost a stranger to his family. He does not spend just an occasional evening at the tavern, but every evening and night until it closes at midnight or after. And when he does go home he continues drinking beer and does not retire until 2 or 3 o'clock in the morning. He arises from bed the next day from 10 a. m. to 1 p. m., when he has "brunch", a contraction and abbreviation of "breakfast and lunch", after which he goes to his office. Sometimes he is home at the time of the evening dinner, but often late and after the family has eaten, and often does not come home for evening dinner at all. When he is at home for his meals he is faultfinding about the food, and frequently will leave the table and take the two older children out to eat at a public eating place. He himself says, "I did at times complain about meals, she isn't the best cook in the world but she tried her best." From 1941 to 1945 Mrs. Henrietta Schaeffer worked for the Frankenbergs as housekeeper and cook; she testified that she didn't see much of Mr. Frankenberg, he was either sleeping or chasing off to work; that she and Mrs. Frankenberg did the cooking together, and that Mrs. Frankenberg was a better cook than she. Another housekeeper and cook who worked in the Frankenberg home from December, 1945, until May, 1947, said that Mrs. Frankenberg kept the house tidy and her management of the home was good.
Not only was Mr. Frankenberg given to complaining about food served in his home, but on numerous occasions in the presence of his wife criticised the food served in public eating places. When he and his wife were in company with friends and a friend called for the check for drinks or food, Mr. Frankenberg would invariably offer to pay the bill and say, "Can you afford it?" to the embarrassment of the friends and of his wife. On one occasion his wife went into the bathroom and locked the door to escape from her husband who was in a fit of temper and he broke out the panel of the door to force his way in as she escaped through another door and called the police, but when the police arrived Mr. Frankenberg had left the house.
At a party given in their home for a number of their friends Mr. Frankenberg said to Mr. Burton in the presence of five or six guests, "I can't do anything with Ruth, why don't you take her and warm her up for me?" The defendant denies he made such a statement, but plaintiff's testimony that he did is supported by the testimony of Mr. and Mrs. Burton and Mr. Kehl. Mrs. Kehl says she didn't hear the remark that her husband had testified to but she had heard Mr. Frankenberg make that remark at other times.
In December, 1947, Mr. and Mrs. Frankenberg went on a vacation trip to Florida. Mr. Frankenberg left Florida for home on January 15, 1948, leaving his wife and children to return home later. When she returned by airplane he asked her how she got to the airplane port and she told him that John Lambert, a man they had met in Florida, and a friend of Lambert's took her and the children to the airplane port. Mr. Frankenberg claims that another friend who was in Florida, Mr. Pollnow, telephoned him that his wife had met up with a boy friend after he (Frankenberg) had left. Mr. Pollnow was not called as a witness. There was no testimony of any improper conduct on Mrs. Frankenberg's part with Lambert except what Frankenberg says his friend Pollnow telephoned to him, and Frankenberg's testimony that his wife afterward confessed to him of improper relations with Lambert, which Mrs. Frankenberg emphatically denies. However, Frankenberg thereafter charged his wife with infidelity and improper relations with Lambert. He told Elmer H. Boyer in February, 1948, that his wife had gotten a boy friend in Florida after he left and that he was all broken up about it. Mrs. Eve Howell testified that in July, 1948, (the divorce suit was filed April 14, 1948) Mr. Frankenberg stated to her that his wife was running around, and that he was going to fight the divorce case "just for pure damn meanness." Mrs. Rose Voss says that in June, 1948, Mr. Frankenberg told her that his wife was man crazy; that she had her eyes on her (Mrs. Voss') husband, and she had better watch her man or he would be next.
We are convinced from a careful reading of all the testimony that defendant's charges of improper conduct on his wife's part were groundless and based on suspicion without foundation, and his statements to others were inexcusable.
We have not attempted to make reference to all the evidence or all of the witnesses who have testified, but have herein made reference to occurrences that are corroborated by witnesses who apparently are disinterested and telling the truth, and from such testimony not just one indignity was offered to the plaintiff but many indignities; it was a course of conduct on the part of the husband which would render life intolerable for the wife. His treatment of his wife and unsupported charges against her character were such as calculated to make her lose respect and affection for him, and cause her to believe his efforts at a reconciliation after the separation were in bad faith. Time may yet soften the hearts of both for the sake of their children. We are only privileged to review the record on appeal and determine whether upon the record the decree of the circuit court was right or wrong. We think it was the only decree that could properly have been entered.
The testimony of plaintiff and of defendant, given at great length, when considered with the testimony of the disinterested witnesses, does not tend to change the views hereinabove expressed. Mrs. Frankenberg narrated the episodes above enumerated and many further acts and words of her husband which would constitute indignities, some of the grossest character, all of which Mr. Frankenberg denied. She was corroborated as to many of these acts and words by the testimony of her mother and father. However, their testimony shows such a belligerent attitude toward and dislike for their son-in-law that it lends little or no support to her testimony, and lacks probative force. Consequently, we have before us the recorded testimony of the wife denied by the recorded testimony of the husband. The one offsets the other except for the rule that where the testimony is conflicting the appellate court should and usually does defer to the finding of the trial court. Sufficient to say that upon the record as a whole the judgment and decree as rendered by the circuit court should be affirmed. It is so ordered.
ANDERSON, P. J., and McCULLEN, J., concur.