Ellebrecht v. Ellebrecht

• Citation: 243 S.W. 209
• Decision Date: 24 June 1922
• Docket Number: No. 16935.,16935.
• Parties: ELLEBRECHT v. ELLEBRECHT.
• Court: Missouri Court of Appeals

243 S.W. 209

ELLEBRECHT v. ELLEBRECHT.

No. 16935.

St. Louis Court of Appeals. Missouri.

June 24, 1922.

Rehearing Denied July 1, 1922.

Appeal from St. Louis Circuit Court; Victor H. Falkenhaimer, Judge.

"Not to be officially published."

Suit by William Ellebrecht against Annie Ellebrecht for divorce. Decree for plaintiff, and defendant appeals. Reversed.

Arthur V. Lashly, of St. Louis, for appellant.

Taylor R. Young, of St. Louis, for respondent.

BIGGS, C.

An action for divorce by the husband against the wife. The parties were married in 1903, and separated on March 2, 1919. According to defendant, five children were born of the marriage, ranging in age from 7 months to 15 years, but plaintiff denies that he is the father of the youngest child born after the separation and the institution of this suit. The petition charges the defendant with various acts of marital misconduct, such as quarreling at plaintiff without cause, throwing at him various articles, calling plaintiff vile names, purposely cutting his clothing, refusing to mend his clothes, burning up clothes of their children, falsely swearing out a warrant against the plaintiff for wife and child abandonment and for vagrancy, refusing to turn over to plaintiff certain articles of property, including a policy of life insurance, also a deed to a cemetery lot, accusing plaintiff in the presence of the children of drunkenness and disgraceful conduct with other women, instructing the children to disregard plaintiff. There is also in the petition a statutory charge of adultery.

Defendant's answer was a general denial of the allegations of the petition, and as a bar to the suit defendant pleads matters of recrimination, such as that plaintiff abandoned the defendant while she was carrying the last child and refused to aid, assist, or comfort her during her illness at the birth of said child and had wrongfully and untruthfully charged the defendant with adultery and denied the fatherhood of the child, although knowing that such charges were without foundation in fact; that plaintiff had failed and refused to support the defendant, and that defendant was forced to do washing and other manual labor in order to provide herself and children with the necessaries of life; that plaintiff had refused to take his wife and children to places of amusement; that plaintiff was addicted to the excessive use of intoxicating liquors; had cursed and abused defendant and the children; created disturbances in the home, and told defendant she should have been dead a long time ago; that plaintiff accused defendant of dishonesty; that he had abducted the children and had put them in an orphan asylum; that he had disclaimed parentage upon a previous occasion of another child born of plaintiff and defendant; had received communications from other women couched in endearing terms; had assulted and struck the defendant; and had habitually and repeatedly as a matter of everyday occurrence called defendant vile names, accused her of infidelity, and had formed the habit of using profane, obscene, and vulgar language in the presence of the children and other persons. Defendant does not file a cross-bill and is not seeking a divorce in the action, but only a dismissal of the plaintiff's petition.

After the hearing, the trial court granted plaintiff a divorce and gave to the defendant the custody of the children, and provided that plaintiff should pay a certain weekly amount for their support. The trial judge did not make a finding of facts, hut simply a general finding to the effect that plaintiff was entitled to a divorce, so it is impossible to ascertain on what charge the decree is based. Defendant appeals.

Leaving aside for the moment the charge of adultery, it may be said that plaintiff's evidence tended to prove a sufficient number of the charges in the petition to warrant the granting of a divorce on the ground of indignities. It will serve no good purpose to record the sordid story of marital infelicity that existed for sears in this household. It may be conceded that plaintiff's evidence was sufficient to warrant a decree in his favor provided he himself could be said to be an innocent and injured party as required by our statute. While much of the evidence was conflicting, and while the plaintiff denies a considerable portion of the evidence detailed by the defendant and her witnesses, including some of her neighbors, we think it clear from a careful reading of the record that plaintiff's admissions, coupled with other evidence which is uncontradicted, was sufficient to prove beyond controversy that plaintiff was not free from fault, was guilty of marital misconduct, and was not such an innocent and injured party as was entitled to affirmative relief. He admits that he regularly had his whisky in the morning and his beer at night, but denies that he was intoxicated. He further admits that there was constant quarreling in the household between the plaintiff and the defendant in the presence of the children; that he took part in such quarreling, but that the quarreling was started by his wife due to her demands upon him for money for support of herself and the children. On such occasions he admits that the quarreling usually ended by his telling his wife to shut her damn...