Becherer v. Becherer

• Decision Date: 04 October 1927
• Docket Number: No. 19747.,19747.
• Parties: BECHERER v. BECHERER
• Court: Missouri Court of Appeals

299 S.W. 61

BECHERER v. BECHERER

No. 19747.

St. Louis Court of Appeals, Missouri.

October 4, 1927.

Rehearing Denied October 25, 1927.

Appeal from St. Louis Circuit Court: Claude O. Pearcy, Judge.

"Not to be officially published."

Action for divorce by Floyd O. Becherer against Bertha M. R. Becherer. From a judgment for defendant, plaintiff appeals. Affirmed.

Joseph T. Davis, of St. Louis, for appellant.

Foristel, Mudd, Hezel & Habenicht, of St. Louis, for respondent.

BENNICK, C.

This is an action for divorce, instituted by the husband. The finding and decree of the court was that plaintiff was not the innocent and injured party, and that his petition be dismissed, from which judgment plaintiff has appealed.

In plaintiff's petition it was alleged that plaintiff and defendant were married on September 14, 1912, and continued thereafter to reside together until August 30, 1925. As grounds for divorce, plaintiff counted upon numerous alleged indignities, which, in substance, were that shortly after their marriage defendant began to show a spirit of indifference toward plaintiff and the home, and manifested degrees of slovenliness, carelessness, and laziness, which conditions continually, grew worse until they became unbearable and intolerable; that during the last 4 years of their married life, and particularly during the time the parties had had a maid in their employ, defendant would rarely arise in the morning in time to have breakfast with plaintiff before he left for his place of business, but instead would remain in bed until the middle of the day; that when they had no maid in their employ, defendant would prepare plaintiff's breakfast on working days, only after great effort on the part of plaintiff and much quarreling on the part of defendant; that during the last 4 years of their married life, defendant rarely arose to prepare breakfast on holidays and Sundays, but would continue to remain in bed, and plaintiff would be obliged to prepare his breakfast and eat alone.

It is further alleged that subsequent to the birth of their child, Floyd O. Becherer, Jr. in July, 1919, defendant would continue to remain in bed as aforesaid, and if the child awoke, she would either punish the child to compel him to keep quiet and go back to sleep, or she would compel said child to get up and remain with the maid in order that she would not be disturbed; that subsequent to the birth of said child defendant refused to have more children, and forced plaintiff to use preventive means in order to avoid conception; that by reason of the habits of defendant, she deprived the child of needful hours of play and a mother's care; that as a result of remaining in bed during the greater part of the day, defendant would be unwilling to retire during reasonable hours at night, but would invariably, without just cause or excuse, remain up and refuse to retire with plaintiff until the late hours of the night, and frequently until the early hours of the morning; that such conditions continued, irrespective of the hard days of work and worry plaintiff had experienced; that defendant would also keep the child up until such late hours, thereby depriving the child of having regular hours and the necessary amount of sleep and rest; that when plaintiff, for the health and benefit of said child, insisted upon said child retiring not later than 9 o'clock in the evening, defendant would display her temper and become abusive towards plaintiff; that, as a result of said irregular hours of sleep, the child became nervous and irritable, and plaintiff became unfit for his work; that after the child became of school age defendant continued her said habits, and plaintiff had great difficulty in having defendant get up in time to prepare the child for school; that as a result the child would be hurried through his breakfast; that due to defendant's said habits the child was invariably late for school, resulting in his being criticized by his teachers and becoming nervous and excitable; that the condition as aforesaid became so bad that in 1925 plaintiff was forced to delay going to his place of business each morning in order that he might stay at home and see that the child arrived at school on time.

It was further alleged that defendant rarely prepared an evening meal on time; that said meals were usually prepared hurriedly and without any desire to please plaintiff, and that defendant boasted that she would not trouble herself to prepare things for him; that defendant also deprived the child of his evening meal until said late and irregular hours, resulting in said child becoming undernourished; that during the latter years of their married life, defendant seldom began her evening meal with plaintiff, and frequently did not eat until plaintiff had finished.

The allegation was made that defendant invariably failed, neglected, and refused to keep her appointments with plaintiff, when he made engagements to go to places of amusement or to meet and entertain customers; that on such occasions defendant would frequently be from 2 to 6 hours late; that defendant would also fail to keep appointments when friends were invited to their home, or when she and plaintiff were invited to the homes of friends; that as a result of the foregoing, plaintiff was continually annoyed and embarrassed, and that the same finally resulted in the alienation of practically all of their friends, and caused their friends to cease inviting plaintiff and defendant to their homes and to places of amusement; that the same also resulted in such embarrassment to plaintiff that he was unable to make appointments for defendant to meet his customers and business associates; that defendant took very little interest in the home and displayed carelessness in seeing that the house was kept in order, which condition resulted in plaintiff's being unable to invite customers, business associates, and friends to his home; that when he did desire to bring such persons to his home, he would be met with bitter objections from defendant; that plaintiff in 1917 secured a position in Oklahoma which required him to live there, and that, although he secured an apartment, defendant refused to reside there, and finally forced plaintiff to give up such position; that when plaintiff was about to make business trips out of the city, due to defendant's previous neglect, it would be necessary to call in plaintiff's mother to assist defendant in getting plaintiff's clothes in order; that defendant gave plaintiff no co-operation or assistance in his business, but would find fault with him and nag him about the home.

It was alleged that defendant had a violent and ungovernable temper; that she would call plaintiff many vile, abusive, and vulgar names; that on many of such occasions she would threaten to strike plaintiff; that such display of temper was sometimes directed to the child; that defendant would complain of plaintiff to her friends and accuse him of carelessness and untidiness around the home, find fault with him, make disparaging remarks about him, and frequently, without just cause or excuse, accuse him of infidelity, all of which was very annoying and embarrassing to plaintiff; that defendant constantly grew more indifferent and cold toward plaintiff, and frequently told him that she cared nothing for him; that defendant on several occasions was accompanied to different places by a certain Albert Jennett, leaving plaintiff at home with his mother to care for the child; that plaintiff in February, 1925, in the presence of defendant's father, appealed to defendant to mend her ways, but that she flew into a rage and refused to listen further to him, and thereafter refused to cohabit with him; that plaintiff left the home on or about August 30, 1925; that subsequent to the final separation, by mutual agreement, plaintiff had the child in his care on certain days; that when he would call for the child, it would be crying irritable, and arrogant; that when plaintiff undertook to return the child to defendant in the evening, she would frequently not be at home until 11 o'clock at night.

Plaintiff prayed that he be divorced from the bonds of matrimony contracted with defendant, that he be given the care and custody of the minor child, and for such other and further orders and reliefs as to the court should seem meet and proper.

The answer of defendant admitted the marriage of the parties and the birth of the minor child, but denied each and every other allegation contained in plaintiff's petition.

Although a divorce proceeding is a statutory action, and primarily one at law, it is, nevertheless, the right and duty of an appellate court, as in equity cases, to review the evidence for itself. Chapman v. Chapman, 269 Mo. 663, 192 S. W. 448; Klenk v. Klenk (Mo. App.) 282 S. W. 153; Methudy v. Methudy (Mo. App.) 238 S. W. 562; Dennis v. Dennis (Mo. App.) 289 S. W. 16. In so doing when the evidence is conflicting and close, the appellate court may defer largely to the trial judge, who had the parties and witnesses personally before him, and, on such account, was afforded a favorable opportunity to determine their credibility; however, as we have indicated above, the appellate court must examine the evidence and make its own findings, and it will not be bound by the trial court's conclusions, if the same are found to be erroneous. Bassett v. Bassett (Mo. Sup.) 280 S. W. 430; Cherry v. Cherry, 258 Mo. 391, 167 S. W. 539; Ferguson v. Ferguson (Mo. App.) 279 S. W. 189; Klenk v. Klenk, supra.

Plaintiff first argues that the court erred in finding that he was net the innocent and injured party and in dismissing his petition, both of which matters necessarily comprise but a single issue for our determination. In passing upon the question thus presented, we have carefully and painstakingly read the voluminous record in the case, comprising 669 pages of testimony, reduced in great part to narrative...