Ashburn v. Ashburn

• Decision Date: 28 April 1903
• Citation: 74 S.W. 394,101 Mo. App. 365
• Parties: ASHBURN v. ASHBURN.
• Court: Missouri Court of Appeals

74 S.W. 394

101 Mo. App. 365.

ASHBURN v. ASHBURN.

Court of Appeals at St. Louis, Missouri.

April 28, 1903.

DIVORCE—INTOLERABLE INDIGNITIES—CRUEL TREATMENT — ACCUSATIONS OF UNFAITHFULNESS —DESERTION—CUSTODY OF CHILD.

1. Where a wife suing for divorce testifies that her husband applied harsh, cruel, and wicked names to her, abused her in the presence of others, and struck her frequent blows with his fists, sticks of wood, or any other convenient articles, but her testimony is unsupported, and negatived by that of the husband, the finding of the court below, adverse to her, will not be disturbed.

2. While unjust and untrue accusations of unfaithfulness made by a husband are intolerable indignities, within the statute authorizing divorce on that ground, yet where the husband's suspicions, though untrue in fact, are warranted by the wife's indiscreet conduct, a divorce should not be granted her.

3. A husband, who was partially paralyzed, but able to perform much of the work around his farm, objected to his wife leaving home for other employment; desiring that she remain to attend to her domestic duties and the care of their child. He threatened that, if she left, she could not return. Before her departure he had found fault with her frequent absences, and the degree of intimacy existing between her and a farm hand whom he discharged and threatened to kill. His suspicions, through untrue in fact, were warranted by the wife's indiscreet conduct. Actuated by regard for the child, he endeavored, personally and by letter, and by the intermediation of a third person, to induce her to return; his efforts being contemptuously repulsed. He was irascible and easily aroused to anger. Held, that the wife's departure was unjustifiable, and, having continued for one year, entitled the husband to a divorce for desertion.

4. Where a divorce is granted the husband, and the proof shows that he is prepared to take care of his 5 year old child, with the aid of a widowed aunt who lives with him, who is a woman of tenderness, experience, and intelligence, and it appears that the future welfare, maintenance, and education of the child will be promoted in the husband's custody, its custody will be awarded to him, with reasonable rights reserved to the wife to visit it.

Appeal from Louisiana Court of Common Pleas; David H. Eby, Judge.

Suit for divorce by Russell Ashburn against Robert E. Ashburn, in which defendant files a cross-bill. From a judgment refusing relief to either party, and awarding plaintiff temporary alimony, etc., defendant appeals. Reversed.

Pearson & Pearson, for appellant. Ball & Sparrow, for appellee.

REYBURN, J.

Plaintiff sued defendant for divorce, and defendant, by cross-bill, in turn, asked the same relief. Each charged the other with intolerable indignities, and, after full hearing, the trial court refused a divorce to either party, and awarded plaintiff temporary alimony at the rate of $25 per month pending suit, and an allowance as attorney's fee and for suit money, from which judgment and order defendant has appealed.

After an acquaintance of three months or less, the parties hereto were married, the ceremony being performed by plaintiff's father on the 15th day of April, 1897, and they lived together until the 10th day of September, 1901; one child, a boy now about five years of age, being born of the marriage. Consequent on injuries sustained when nine years of age, defendant's lower limbs were paralyzed, and he was compelled to depend on his hands and arms for locomotion; but, despite his crippled condition, he was able to perform much of the work of his occupation as a small farmer—could mount a horse from the ground, and ride any kind of farming implement. During their married life, defendant employed a farm hand when he could secure one; but from time to time, when he was without such assistance, plain...