Clemens v. Clemens

• Decision Date: 11 December 1950
• Docket Number: No. 41928,No. 2,41928,2
• Citation: 361 Mo. 485,235 S.W.2d 342
• Parties: CLEMENS v. CLEMENS
• Court: Missouri Supreme Court

Page 342

235 S.W.2d 342

361 Mo. 485

CLEMENS v. CLEMENS.

No. 41928.

Supreme Court of Missouri, Division No. 2.

Dec. 11, 1950.

Rehearing Denied Jan. 8, 1951.

Charles M. Spence, Harold I. Elbert, St. Louis, Frank W. Jenny, Union, Thompson, Mitchell, Thompson & Dougas, St. Louis, of counsel, for appellant.

Ralph C. Lashly, St. Louis, Leo A. Politte, Washington, for respondent.

BARRETT, Commissioner.

In this divorce suit the trial court has dismissed the husband's petition and granted the wife a divorce upon her cross bill and awarded her $30,000.00 alimony in gross, and additional attorneys' fees. In their petition and cross bill both parties, as grounds for divorce, rely solely upon 'such indignities to the other as shall render his or her condition intolerable'. Mo.R.S.A. Sec. 1514. The wife contends that she proved the requisite insufferable, intolerable indignities and thereby clearly and plainly established her right to a divorce. She urges, since the trial court has found for her, that it is this court's duty to defer to the trial court's finding, especially so in view of the conflicting evidence as to certain of the indignities upon which she relies, and sustain her decree. Hoecker v. Hoecker, Mo.Sup., 222 S.W. 387, 389. The husband urges that the evidence does not sustain the wife's right to a decree of divorce upon the ground of indignities but on the contrary demonstrates that it is he who has suffered the intolerable indignities and is the innocent and injured party entitled to a divorce. This court recognizes and adheres to the rule of deference, particularly so to the trial court in this case. But upon this, the husband's appeal, it is likewise this court's duty and responsibility, as it was with the trial court initially, to try the cause anew and enter such judgment as this court is compelled by the probative force of all the circumstances. Schulte v. Schulte, Mo.Sup., 140 S.W.2d 51, 54; Vincent v. Vincent, Mo.Sup., 123 S.W.2d 86; Bassett v. Bassett, Mo.App., 280 S.W. 430.

On the date of the trial, in January 1950, Mr. Edward Clemens, the husband, was sixty-five years of age. He started out in 1901 as a messenger boy for the Terminal Railroad and remained with that company in various capacities until 1932 when he was assigned the duty of managing its St. Louis Mart. In 1936 he became executive vicepresident of the Mississippi Valley Barge Lines Company and retired as its president on December 1, 1948. He was first married in 1912 and his wife died in 1942. In 1942, as a 'dollar a year man,' he was chosen director of waterway transportation for the Office of Defense Transportation and partially moved his residence to Washington, D. C. It was there that he met and married Lucille Davis, who was employed and made her own living. She was thirty-seven years of age at the time of the trial and had been twice married and twice divorced before her marriage to Mr. Clemens on February 9, 1945.

At the time of the trial Mr. Clemens had a net worth of about $100,000.00, all of which he had accumulated prior to his marriage to Lucille Davis. She claims that he is worth $140,000.00 In addition they own, as tenants by the entirety, a farm near St. Clair of the value of $25,000.00. Since his retirement he has an annual income, from retirement pay, annuities and stocks of $9600.00.

Immediately after their marriage they returned to St. Louis and lived in an apartment at 3308 Russell Boulevard. They spent week-ends on the farm near St. Clair and on January 1, 1949 they gave up their residence in St. Louis and moved to the farm. They had quite a lot of company, for the most part his old friends and business associates. They were convivial and gave and attended a great many dances, dinners and cocktail parties and it was out of these social engagements, principally, that the incidents upon which she relies as indignities occurred. She said that he was 'not too easy' a person to live with, that he always found fault with her, said that she wore too much lipstick and ridiculed her hats and clothes and was not always even tempered. She testified that he used vile and offensive language towards her but she could not recall any specific occasions at the moment. She said that he failed to provide her with the necessities and failed to properly support her. He gave her an allowance of $150.00 a month, however, and any sum she saved he matched with a like sum in a savings account which at the time of their separation amounted to about $2400.00. She bought her clothes from her allowance and was able to recall that the only other bills she ever paid were $20.00 for some aluminum, $125.00 for some Venetian blinds and $3.98 a pair for some curtains. Admittedly Mr. Clemens paid all the grocery bills, all other major items concerning the furnishing and upkeep of the house and, in fact, all other bills and expenses. But, as we have indicated, the acts and conduct upon which she principally relies as constituting intolerable indignities occurred after or grew out of cocktail parties and social engagements.

On October 15, 1948 they attended the Traffic Club party at the Chase Hotel and she says that he was quite drunk and kept dancing with another woman and left her stranded without a partner for the last dance. She said: 'And I asked him about it later and he didn't like it at all. And then when we got to the apartment he knocked me down.' This is her description of another incident: 'December 28th, at a cocktail party at some friends' of mine in Clayton he became quite drunk, and drank Martinis from a drinking glass, and they were serving cherries instead of olives. And we came home, and someone had invited us to a party for a nightcap. So he didn't want to go, he wanted to go home. So when we went in the garage he came around to the door of the car and drug me out on the concrete walk, and ripped my clothes.' She testified that at these social events he frequently had lipstick on his face and handkerchief and that after their separation she found one of his undershirts with lipstick, rouge and other incriminating matter on it. She complained of his being drunk on Easter Sunday when they had some of his friends for dinner. Of this day he said: 'Easter Sunday, the day I had too much to drink, and which is admitted.' As to the lipstick and his kissing the ladies he said: 'She has quarreled with me often and vociferously because she would see the lipstick imprint on my handkerchief after lovely friends of ours have come out and kissed me, 'Hello, Uncle Ed,' my sister or anybody else. It would embrassass me, there is no answer to it, just say that I had been associating with other women.' He denied that he knocked her down after the Chase Hotel party or that he ever struck her.

This is his version of the December 28th party and its aftermath: 'They had an inexperienced person mixing drinks, and the laughter of everybody was about cherries in the Martinis and olives perhaps in the Manhattans--she got her ingredients a little bit mixed. And we laughed about that to some extent. Anyway it was quite a pleasant gathering and lasted I would say until well after midnight--not too long. They had hors d'oeuvres to eat, and we left there, I thought, in fine humor. We had no more than entered the car, until Mrs. Clemens began the usual admonition to me that I had been too attentive to somebody, and it happened in this case to be Mrs. _____, and that I had neglected _____. And as we drove along it got later, of course, and Mrs. Clemens says, 'We are going out to _____,' I don't know the lady very well, and I don't remember her name '* * * on Hanley Road.' I says, 'That is pretty far out, I think you have had enough to drink, let's go home.' She says, 'We are not going to do that, I am going out there if I have to go by myself.' I says, 'Please don't ack like that, we have a breakfast engagement,' and continued to drive on down to our apartment. And when we arrived there Mrs. Clemens began to be quite abusive and said that I was an old fogey. I says, 'Now, remember, it is approaching two o'clock,' and I sat there for half an hour pleading with her to go to bed, so we could get up next morning to keep our breakfast engagement. She said she wasn't going up to bed, that she had a key to the car, and I reminded her that she had never gotten a license to drive the car, and besides, 'I don't think you ought to drive at this time of night.' Well, she says, 'Louise invited us.' I said, 'That is true enough.' And I continued to plead with her to go upstairs, and I went around to open the door, and to continue my pleading, and she just sort-of half rolled out of the car. And I intended to grab her by the lapel of her cost, and instead caught her by the dress, and as she fell the bosom was torn in her dress. She sat down, not heavily, I would say, but she did sit down. And I helped her up and picked up her little bag that had cosmetics in it, and she went upstairs.'

When he struck her, after the Halloween dance, she said 'I thought I was pregnant' and, in her judgment, as a result of the blow, she suffered a miscarriage. In connection with this testimony he offered in evidence hospital records which showed that she had entered the hospital on November 26, 1948 at 4:30 p.m. and was discharged at 11:00 a.m. on November 28, 1948. An obstetrician and gynecologist examined the record and testified that it showed 'dilation and curettage,' an operation for therapy but principally for diagnosis--'a procedure in which the entrance of the uterus is dilated so an instrument can be passed in the cavity of the uterus, and the lining wall of the uterus is scraped away, partially or completely.' She, as we understand the record, had said that she left the hospital on November 28th and that she did not thereafter menstrate until January 3, 1949. The doctor gave it as his opinion that 'the absence of menstrual flow from the date of the dilation and...