Opinion
No. 28275.
September 16, 1952.
APPEAL FROM THE CIRCUIT COURT, ST. LOUIS COUNTY, AMANDUS BRACKMAN, J.
William L. Mason, Jr., Elmer M. Gaskill, St. Louis, for appellant.
Benjamin B. Tepper, A. S. Tepper, St. Louis, for respondent.
This is an action for divorce in which the defendant filed a cross bill. The plaintiff was granted a decree whereby she was awarded the custody of two children born of the marriage with temporary custody in the husband until such time as the plaintiff established a suitable home. She was also awarded alimony and attorneys' fees. Defendant below prosecutes this appeal.
Plaintiff's petition alleges that her condition as defendant's wife had been rendered intolerable by threats of violence, beatings, bitter quarreling and faultfinding. She prays for custody of the two children, support money for them, and for alimony.
The defendant denies any misconduct on his part and charges in his cross bill that the plaintiff associated with other men and was violently quarrelsome and jealous of his parents.
These parties were married in June of 1941, when the defendant was twenty-seven years of age, and they lived together until July of 1950. Two children were born of the marriage, the older being Nancy who was age seven at the time of the trial and the younger named Betty who was only three years old at that time.
Defendant worked as a clerk and earned approximately $250 a month after customary deductions. It appears that he managed the spending of the household funds and that his wife handled very little of the money. When he came home from his work, if the evening meal was not to his liking, he would take his older daughter and leave the house. He went several nights a week to his parents' home, leaving the plaintiff alone with the younger child. All during the marriage of these parties defendant appeared to have an unusually strong attachment for his parents.
Plaintiff testified that her husband never gave her any money or purchased her any clothing. She did not know what salary he earned. She made all of the clothing for the children and kept them well cared for and clean. She said that she could do nothing to please her husband and that night after night he would come home and take Nancy with him to his parents' home. He was faultfinding and abusive toward her. She stated that the minute he came in the house he started an argument, using vile language toward her and frequently striking and choking her. He showed her no affection and told the children not to mind her, that she was a witch. At one time she announced her intention to take over the direction of a Brownie Scout group, to which Nancy belonged, and this started an argument, with her husband telling her she was not a fit person to do such work. When Nancy became old enough to learn to play cards he would play with her and tell her that her mother did not have sense enough to play the game. She finally decided that they could no longer live together and apparently by agreement she sold their household furniture for about $300 and left for California with Betty, the younger child. She intended to go to a friend's home there and seek employment, with the idea that when she became established she could come back and get Nancy. Upon reaching California Betty became very ill and the plaintiff was obliged to return at once with the child by air to St. Louis. When she got back to St. Louis she went to the home of her mother-in-law and father-in-law, where her husband and Nancy were staying. She waited for her husband to return from work and although he was angry because she had come back to St. Louis, she persuaded him to go in a room apart from the rest of the family to discuss their problems. She said that he launched into an argument that eventually resulted in him beating her into unconsciousness in the presence of his parents and the children. From that time on she has never had the actual custody of either of her children and although a stipulation was entered into which permitted her the right to visit them at certain times pending the outcome of the divorce action, such visits were usually marked by quarrels and the presence of her mother-in-law did not enable her to have a satisfactory visit with the children.
The defendant testified that at the time of the trial he and the two children were making their home with his parents, and that the arrangement was quite satisfactory to him. They lived in a small flat with just one bedroom and Betty slept in the bedroom with her grandparents where she had a small separate bed. Nancy slept in the living room with her father on a rubber mattress. As to his wife's conduct he testified that she did not like housekeeping and was of a nagging, quarrelsome disposition. He stated that she swore at the children and struck Nancy in the back with her fist and struck and swore at him. She complained that he failed to show her any affection and said that there were other men that she could go with and particularly named a Bob Becker. She said she had gone out with him. He was a man who worked at the wartime plant at Weldon Springs where the plaintiff herself had worked. The defendant said he knew that Backer drove her to and from work, but admitted that this was due to lack of transportation facilities and that plaintiff was but one of a group that Backer transported in his car. He testified that she told him he was not the father of their younger child, but that he had no doubt about his paternity and thought that those remarks were just "one of her tricks". These remarks did not cause him to show any greater affection for the plaintiff and he said he gave her all the affection that she deserved.
Defendant was shown a photograph of his wife taken by her brother-in-law after the beating that he, the defendant, had given her upon her return from California. He said that she looked about the same in the photograph as she always did except for the adhesive tape on the side of her forehead. The photograph plainly revealed that in addition to the taped portion of her face she had two blackened eyes. His version of the beating was that an argument ensued after she returned and she went to the kitchen in his mother's house where a butcher knife was ordinarily kept and that he grabbed her wrists and started beating her. He wore a ring and intentionally hit her in the face with the ring. His mother and father were passive onlookers while he administered to his wife.
Neighbors of the parties testified that the children appeared well nourished and properly cared for during the time plaintiff and defendant were living as husband and wife. Other witnesses, who worked with the defendant, stated that he bore a good reputation.
On rebuttal, plaintiff stated that she probably had said that the defendant was not the father of the younger child and that the statement was not true and that in her desperation she sought to hurt her husband as he had hurt her. She also said that the Bob Backer referred to was a married man with a family and she had not associated with him.
The foregoing constitute the major complaints and further details of the conflict that existed between the parties and the defendant's apparent preference for life with his parents would serve no useful purpose.
As stated, the court granted a decree to the plaintiff and gave her custody of the children, and the appellant urges that the decree is against the weight of the evidence. In passing upon this point it may be well to repeat the established rule that our review is a trial de novo on the record before us. We reach our own conclusions, but in doing so we defer to the trial judge who had the advantage of seeing and hearing the witnesses when it appears from the record that the case is a close one resting chiefly on the credibility of the witnesses and the character of the parties as that might be displayed from the witness stand. Scheer v. Scheer, Mo.App., 238 S.W.2d 865; Lambert v. Lambert, Mo.App., 222 S.W.2d 544.
It is contended that all the evidence shows is a quarreling and wrangling between the parties and a lack of conciliatory temper. This quarreling was carried on even to the point of them striking each other, and if the record rested alone upon the violent disagreements and fights that took place, it would perhaps be insufficient to sustain a divorce for either party. Greenbury v. Greenbury, Mo.App., 223 S.W.2d 153; Caffey v. Caffey, Mo.App., 118 S.W.2d 1047. But we have here considerably more than that, for it appears from the record itself that the husband maintained a constant coldness toward his wife and a studied effort to show a dislike for her. Goaded by this she did and said many things that were certainly not commendable, but she should not be denied a divorce because of outbursts induced by her husband's misconduct. Rowland v. Rowland, Mo.App., 227 S.W.2d 478.
The trial judge, at the conclusion of the evidence, immediately stated that he thought that the plaintiff had been extremely frustrated by the coldness of her husband and that the only matter that gave him concern was the welfare of the children. The vicious beating and intentional neglect accorded the plaintiff by the defendant seemed to bear out the conclusions that the trial judge reached, and it follows that he did not err in granting a decree to the plaintiff.
It is asserted that the defendant should have been granted a decree but that is, of course, contrary to and covered by what we have said in relation to the first point raised.
The only other matter left for consideration is the contention that the court erred in granting custody of the children to the plaintiff. These children are both girls of tender age and should have the care of their own mother. The fact that the defendant may be better situated to house them at the present time is not a criterion upon which to award their custody. Nor does the argument that the mother is a person of irascible temperament persuade us that she should not have custody of the girls, for, as we stated before, her display of temper seemed to have been induced by the conduct of the defendant toward her. It appears that the court fully weighed and properly considered the welfare of the children in awarding their custody and the decree should not be disturbed.
For the reasons stated, it is 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 RUDDY, JJ., concur.