Opinion
No. 28289.
April 15, 1952.
APPEAL FROM THE CIRCUIT COURT, ST. LOUIS COUNTY, FRED E. MUELLER, J.
Harry Gershenson, St. Louis, for appellant.
Cobbs, Blake, Armstrong. Teasdale Roos and Henry C. M. Lamkin, all of St. Louis, for respondent.
This is an action for divorce in which the plaintiff charged that the defendant had refused to associate with her friends or to take her to places of amusement and that he had failed to provide for her and had frequently struck her. The defendant denied the charges and sought a divorce on a cross-petition in which he stated, in part, that the plaintiff habitually absented herself from home, associated with other men, and was abusive and neglectful of their two-year old daughter. The trial resulted in the court dismissing plaintiff's petition and granting a divorce to the defendant. The defendant was given custody of the child and the plaintiff granted the right to temporary custody on Sundays of each week from 10:00 a. m. to 8:00 p. m. After an unavailing motion for a new trial plaintiff appealed.
The parties were married in Philadelphia in 1942, during the time that the defendant was in the Navy. After he was discharged from active duty in 1945 he came to St. Louis where his wife was living with a family named Emerick. Mr. and Mrs. Emerick were the foster father and mother of the plaintiff and Mrs. Emerick was her maternal aunt. The plaintiff and defendant both lived in this household for a while and then bought a home in the vicinity of Wellston, in St. Louis County. A daughter was born of the marriage and at the time of the trial she was just past two years of age. Plaintiff and defendant were respectively thirty-two and thirty-four years old.
The defendant was employed as a mechanic and earned between $65 and $80 a week, which he turned over to his wife each pay day until shortly before they were separated. It was cutomary for him to get up at six o'clock, feed the baby, prepare his own breakfast, and then put up a lunch to take to work. He had been discharged from active duty as a Chief Petty Officer and remained in the reserves. This required him to attend drill each Wednesday night and he took at least one required training cruise of two-weeks duration.
From three to as many as seven nights a week the plaintiff went roller skating. She usually skated with a man named Goudy and he occasionally brought her home. Most of the time she used the defendant's car to get to and from the skating rink. She left home at 7:00 or 7:30 p. m., and, after skating, went to a restaurant with Goudy and other friends for refreshments, returning home around midnight or considerably later at times. She took one skating lesson a week, for which she paid $1.50, but she was not a professional skater, and engaged in it only for pleasure. On evenings when her husband was obliged to attend union meetings or drill she had a child in the neighborhood sit with the baby. One of these children, most used for this, was ten years old and another was eleven. The nights that her husband stayed home he took care of their daughter. She did not get up early in the morning because when the baby was small it would stay in its crib after its father had given it its morning bottle. When it was older she put the child out in the yard to play and went back to bed if she had a headache, which she frequently had.
All of the above evidence was uncontroverted, and the plaintiff's case rested chiefly upon her own testimony. She stated that while the defendant was still in service she was with him in Quantico, Virginia, and that while they were on a public street there, they engaged in an argument because she would not put the money he was sending to her in a joint account. The argument culminated with the defendant slapping her face. She said that he had slapped and struck her several times since. She also testified that he refused to take her to places of amusement and would not associate with her friends. She testified that he would not give her money for a doctor and a dental bill and refused to give her money to get her clothes from a cleaner.
On cross-examination, she admitted that the defendant gave her his pay check and that she had control of all the money that was available until a short time before their separation. After that she still had sufficient money to go skating with the same frequency that she had before. She said that if she was given custody of the baby she would get employment of some sort and leave the child in a day nursery. When asked if she would give up skating she said that she would if she had to and that she wouldn't go out at night unless she could get some one to stay with the baby.
The defendant admitted that he had slapped the plaintiff when he was stationed at Quantico because she had cursed him, and he stated that the occurrence did not take place on the street but at the entrance to the house where his wife was living, and no people were around at the time. He also stated that he had spanked her with a slipper on one occasion.
Defendant told of sitting night after night with the baby and frequently washing diapers when he came home from work. His remonstrances with the plaintiff about constantly going out had no effect upon her and when he suggested that he would go skating with her she said that she didn't want him to go for he would watch every move that she made. The expense of paying for his home and maintaining his family did not leave him any money for taking the plaintiff to places of amusement.
Neighbors, testifying on behalf of the defendant, spoke well of him, describing him as a man who was always working about his home, making additions or alterations in his spare time. They told of Mrs. Schneider frequently coming home quite late and also said that she took sun baths in her yard during the summer time in very scant and revealing attire. There was considerable testimony in relation to the way she treated her baby.
One neighbor testified that he was called over on one occasion when Mr. Schneider was not home because the baby had a deep cut near its eye. He administered to the child by drawing the would together with adhesive tape. At the time Mrs. Schneider was disturbed for fear she would miss going on a boat excursion for which she had tickets, and she left as soon as the child had been treated by her neighbor. Other neighbors testified that she slapped the baby frequently. Still another stated that she saw the baby climbing on a bed near a window and directed Mrs. Schneider's attention to it, whereupon Mrs. Schneider hit the child so hard that its head struck the window and broke the glass.
Mr. Emerick, the foster father of plaintiff, testified on behalf of the defendant. He told of how he tried to persuade his daughter to stop the conduct she was pursuing and to stay home in order to take proper care of her child and husband. She told him that the baby was in her way and that she could do nothing on account of her. Emerick stated that he was a frequent visitor at Schneider's home and had seen Mrs. Schneider treat the baby roughly by jerking it around and he had seen her slap it and curse it.
Schneider left the home he had bought and went to live with his mother and father-in-law in November of 1950. When he tried to see his daughter after that Mrs. Schneider told him that if he came into the house she would kill him and the child.
It would serve no useful purpose to further extend the statement of the evidence presented. The transcript is large and it is replete with testimony of the plaintiff's night and day excursions in search of pleasure, her neglect and inhumanity towards her child and husband, and her indifference to duty and proper decorum.
The first point raised is that the court erred in granting the defendant a divorce, because his own misconduct barred him from that relief. The misconduct that the appellant seems to think she has proven is that the defendant struck her on the occasions mentioned. Schneider admitted striking her. We encountered the same contention in Politte v. Politte, Mo.App., 230 S.W.2d 142, where the appellant asserted that the plaintiff should not have been granted a divorce because he had struck the defendant. We stated, 230 S.W.2d loc. cit. 148:
"Although plaintiff admits that he did strike defendant, we are convinced that he did this under extreme provocation, and that his actions in this respect do not show a continuous course of conduct connoting settled hate and ill will toward defendant. The proof of sudden acts of retaliation by a party seeking a divorce will not necessarily defeat the action where repeated acts of the defendant constituting grounds for divorce have been shown. * * * `Nor is a party to be denied a divorce to which the evidence shows that he is otherwise entitled if his occasional outbursts and lack of complete control over his own actions are plainly induced by the wrongful conduct of the other party.'"
The other misconduct of which the plaintiff considers the defendant guilty under the evidence is a failure to take her to places of amusement, refusing her medical and dental care, and failing to give her funds for her personal needs. Quite to the contrary, the evidence shows that the defendant was in fact overindulgent of a lazy, pleasure seeking, indifferent wife. His only offense appears to be that he carried patience to a point where it ceased to be a virtue. There can be no question that the plaintiff was without any grounds for a divorce and that the defendant was entitled to a decree.
It is urged that the best interest of a child of tender years requires that its mother should have its custody. This general statement is true where a normal situation is present and the mother is endowed with love and tender concern for her off-spring. Where there is a total absence of natural maternal affection, there is no reason why a child of any age should be given to the mother instead of to a father who has demonstrated his interest in its welfare.
All of the points raised are without merit, and it is therefore the recommendation of the Commissioner that the judgment of the circuit court 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.