Cadenhead v. Cadenhead

• Decision Date: 01 March 1954
• Docket Number: No. 21918,21918
• Citation: Cadenhead v. Cadenhead, 265 S.W.2d 426 (Mo. App. 1954)
• Parties: CADENHEAD v. CADENHEAD.
• Court: Missouri Court of Appeals

Page 426

265 S.W.2d 426

CADENHEAD v. CADENHEAD.

No. 21918.

Kansas City Court of Appeals, Missouri.

March 1, 1954.

Jarrett & Simms, Kansas City, for appellant.

Irving Achtenberg, Kansas City, for respondent.

BOUR, Commissioner.

Plaintiff, Dolores Yvonne Cadenhead, brought suit against her husband, Robert Walton Cadenhead, III, in the Circuit Court of Jackson County, Missouri, at Kansas City, seeking a divorce, alimony, the custody of the parties' minor son, an allowance for the support of the child, and for attorneys' fees. Defendant filed an answer and cross-petition, praying for a divorce and custody of the child. Both parties relied upon alleged intolerable indignities as grounds for divorce. The court granted defendant a divorce, awarded the custody of the child to defendant with reasonable visitation privileges to plaintiff, allowed plaintiff the sum of $100 for attorneys' fees, and ordered that the costs of the proceedings be paid by defendant. Plaintiff has appealed.

Plaintiff and defendant were married in Tulsa, Oklahoma, August 25, 1949. One child was born of the marriage, a son, Robert, who was two years of age at the time of the hearing below. Robert was born in Tulsa. Plaintiff testified that she had been married once before, in 1944, to a Mr. Hanson, whom she divorced before her marriage to defendant, and that she had a daughter, Marsha, by her first husband. Defendant testified: 'This is my only marriage. * * * She was married and divorced and remarried him and divorced him again before I married her.' Marsha was five years of age at the time of the hearing and about two when her mother married defendant. Plaintiff and defendant lived together in Tulsa until December 1, 1951, when they moved to Kansas City, Missouri, with the two children, and they have resided there since that time. About July 1, 1952, plaintiff left the home of defendant and moved to an apartment in Kansas City, where she established a separate place of abode for herself and the two children. Plaintiff filed her petition for divorce on July 12, 1952; defendant filed his answer and cross-petition on August 7, 1952; and the case went to trial on August 26, 1952.

Plaintiff alleged in her petition that defendant had 'a violent and abusive temper', and that 'on various occasions' he struck her 'while in a fit of rage, causing her to fear for her personal safety'. Plaintiff testified that defendant had 'a rather violent temper'; that he struck her and 'when he was mad like that and lost his temper', she was afraid of him. When asked on cross-examination whether she could 'be specific', she said: 'Well, yes, one time when we were on a visit in Tulsa, and were at a Grotto dance, * * * he seemed to have the idea that I was trying to flirt with some Marine there. * * * And so we started quarrelling, and he slapped me. * * * We both had been drinking. * * *

'Q. Do you recall any other occasions? A. Yes, there were two other occasions when we were living at Quality Hill Apartments (in Kansas City, Missouri). * * * We had been arguing. * * * He was mad. * * * I was very angry, yes.

'Q. And did you suffer any harm from it or simply annoyed? A. No, sir.

'Q. Any physical injury as a result of any of these? A. No, sir. * * *

'Q. Were you intoxicated at that time? A. No, sir.'

Defendant admitted that he slapped plaintiff on one occasion when the parties attended a dance in Tulsa, but stated that plaintiff was hysterical at the time. He said: 'I slapped her with the flat of my hand, not hard enough to cause any bruises on her whatsoever. When a person is hysterical, I have found that about the only way to wake them up and bring them to their senses is a sudden shock. * * * She had been drinking that evening.' Defendant's mother, who lived in Tulsa, testified that she remembered the evening in question, and continued: 'My husband and I stayed at home and kept the children. * * * We were aroused from our sleep by a terrible commotion, crying and screaming, hysterics, it sounded like. * * * It was Dolores. And we heard our son trying to quiet her * * *. I finally quieted her down * * *.' Defendant did not expressly deny the charge that he slapped plaintiff on two other occasions.

Plaintiff charged in her petition that defendant had exhibited a hatred of plaintiff's daughter and had punished her 'by using excessive force so as to endanger her health'. When plaintiff was asked on direct examination how defendant had treated her daughter, Marsha, she said: 'He was very abusive and very cruel to her. * * * One specific time was in March (1952) * * *. We were coming back from a visit (in Oklahoma) * * *, and he had purchased a magazine * * *, and Marsha wanted to look at the magazine, and the little boy tried to grab it away from her and tore the cover off. So my husband picked the magazine up and rolled it and knocked the little girl in the side of the head with it, and she complained of an earache for three days after that * * *. He is just cruel to her, I mean he never has a civil word for her.' On cross-examination, plaintiff testified: 'Q. Did you take the child to a doctor? A. No, sir, she complained of her ear and when I mentioned taking her to a doctor, she made the statement that her ear didn't hurt. However I did consult the doctor on the telephone. * * * He told me to apply warm packs to her ear, which I did. Q. Now, are there any other occasions similar to that? A. No, sir.'

One of plaintiff's witnesses was Raymond L. Jackson of Kansas City, Missouri. He testified that 'over the week end of Decoration Day, they (the Cadenheads) had gone to Tulsa and I had gone down later on the train and rode back with them in their car from Tulsa. And on the return trip he did slap the little girl with a magazine or newspaper, I believe.

'Q. Slap her on the side of the head? A. Yes.

'Q. Did he hit her very hard? A. Well, she cried for several miles afterwards.' Opal Phelps, a witness for plaintiff, testified that she had visited in the Cadenhead home, and that she had never observed 'any difference in the attitude of Mr. Cadenhead toward the two children', while two of plaintiff's witnesses testified that defendant seemed to be partial to his son. Helen Fulton, a witness for plaintiff, testified that on one occasion, when she was visiting in the Cadenhead home, she saw defendant spank plaintiff's daughter, but there was no evidence to show that defendant acted improperly on that occasion. Plaintiff did not mention this incident in giving her testimony.

Concerning his treatment of plaintiff's daughter, defendant testified: 'I had always thought a lot of Marsha before we were married, and she was kind on an unruly child in my estimation, having not had a father before. I was probably a little quicker temper than a lot of them, because I hadn't gone through it. However, most of the time when the child was to be corrected, my wife would say, 'Bob, correct Marsha', or 'Correct the child'. * * * I was the one that was doing the correcting, and if I paddled her it was hurting me in the eyes of the child. But I was doing 90 per cent of the correcting.

'Q. These occasions you refer to was that simply an occasion on which you were disciplining the child for something either the mother or you felt that that child had done that required some disciplining? A. That is right. I had never just beat the child or anything like that. I am not that type of person. * * * I have had difficulty in getting her to mind and her mother had difficulty in getting her to mind.' Plaintiff admitted that on several occasions she requested defendant to correct Marsha.

Another charge in plaintiff's petition is that 'defendant on many occasions has spoken of the plaintiff's mother in a degrading manner with the intent to cause the plaintiff to suffer embarrassment.' Plaintiff testified: 'Q. Now, did he ever make any remarks about your mother? A. Yes, sir. * * * That she is no good and a drunkard, and she is indecent. He made the statement that she has ruined my life. He at one time ordered her to stay out of our house and completely off of our premises, and never to come back, including her friends.' In reply to this charge, defendant said: 'Well, her mother had previously lived with us and moved away to a different apartment in Tulsa and had moved back again. And then moved to another apartment. And she had some friends that came out there that I didn't approve of and the only statement that I made was to please keep her friends away from there and that she could come to our house and see her daughter or the children at any time she saw fit and could, if she wanted to, call and I would be very happy to leave when she came there, since she didn't particularly care to see me.' He said he requested his mother-in-law not to bring her friends to his home because 'most of them were drunk or drinking when they came out there'.

Plaintiff also alleged in her petition that 'defendant has bragged to others of his girl friends and conquests'. There was no evidence to support this charge.

Defendant charged in his cross-petition that 'plaintiff drinks intoxicating liquors to excess and has been frequently and habitually intoxicated'; that 'on numerous occasions plaintiff has become unconscious from the effects of heavy drinking'; that 'on numerous occasions, without the knowledge or consent of defendant, plaintiff has been absent from the family domicile overnight and has thereby neglected the child hereinbefore mentioned'; that 'plaintiff has associated and consorted with persons of poor character and reputation'; and that 'plaintiff is emotionally unstable and has attempted to commit suicide'.

Defendant testified that about every four or five weeks plaintiff 'would leave to go to a club meeting or go see someone for a few minutes or some sort of a party, or something'; that on such occasions she said she would be back at a reasonable hour but that she always remained away...