Ferguson v. Ferguson
| Decision Date | 08 December 1925 |
| Docket Number | No. 19124.,19124. |
| Citation | 279 S.W. 189 |
| Parties | FERGUSON v. FERGUSON. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Madison County; Peter H. Huck, Judge.
"Not to be officially published."
Action for divorce by Andrew Ferguson against Mary Ferguson. Judgment for defendant, and plaintiff appeals. Reversed and remanded, with directions.
Davis & Damron, of Fredericktown, for appellant.
E. D. Anthony, of Fredericktown, and B. H. Boyer, of Farmington, for respondent.
This is an action for divorce. Plaintiff filed his petition to the September term, 1923, of the circuit court of Madison county. Defendant filed an answer and cross-bill. The case was heard in 1923, and taken under advisement. About a year later it was reopened and additional testimony heard, at the conclusion of which the trial court granted defendant a divorce on account of indignities, denied plaintiff's petition, and gave defendant the custody of their infant son for 9 months in each year, and the plaintiff the care and custody of the child during the months of June, July, and August, and ordered plaintiff to, pay defendant the sum of $25 a month during the time she had the custody of the child. From this judgment plaintiff appeals.
Plaintiff, in his petition, alleged that he and defendant were married in May. 1917, in the city of Fredericktown, and continued to live together as husband and wife until the 28th day of July, 1923. The grounds of divorce were indignities, plaintiff alleging that defendant neglected their home and infant child, and "gadded around town," manifesting no interest in the child or their home, and permitting said child to run upon the streets and sidewalks of the city of Fredericktown ; that defendant was guilty of gross, scandalous, and indecent conduct with one Dr. Francis D. Keplinger, a chiropractor, who lived in Fredericktown; that defendant wrote the said Keplinger endearing letters, manifesting deep love and affection for him; that, when plaintiff undertook to counsel and advise with her, she would become enraged and abuse plaintiff. Plaintiff asked for the care and custody of the child, and to be divorced from the bonds of matrimony contracted as aforesaid.
Defendant, in her answer and cross-bill, admitted the marriage and separation as alleged in plaintiff's petition, and the birth of the child, 4 years old at that time. Further answering, she denied all the allegations of plaintiff's petition, and for her cross-bill and cause of action charged plaintiff with numerous indignities, among which were that plaintiff was cold and indifferent toward her for one year after the birth of the child, causing her great anguish of mind; that she would ask plaintiff the reason for his indifference, at which times he would answer her with a cold and indifferent reply; that plaintiff told her that, if he ever had another chance to get married, he would not marry a girl like her, but would marry "a girl with hips"; that he would compare her unfavorably with other women of his acquaintance; that plaintiff, as she learned since the separation, was constantly harassing young schoolgirls, forcing his attentions upon them; that he met certain schoolgirls and importuned them to have intercourse with him; that on one occasion he pushed her backward, causing her to fall over a chair. She also asked for a divorce, and for the care and custody of the infant child.
The evidence, briefly summarized, as introduced on the part of the plaintiff, tended to show that plaintiff and defendant were married, and separated, on the dates mentioned in the petition; that between those dates they spent most of their married life in the town of Fredericktown. Plaintiff and his brother owned the only printing establishment in the town; plaintiff owning a two-fifths interest, and his brother a three-fifths interest. It was a small printing plant, and in addition to his share of the profits, when there were any, plaintiff received a salary of $20 a week. He and defendant were sweethearts at high school, and, about the time of the completion of their high school education, they married. Both of them were comparatively young, perhaps under 30 years of age, at the time the trial was had. Plaintiff testified that his wife refused to stay at home from the time she was married; that, during the time they lived in Puxico, she spent two-thirds of her time in the office and in the stores around town. When they moved to Fredericktown, she repeated the same thing. He made some objections, but there was no serious difficulty in the family over her conduct in this respect. After the child was born, he said, she wanted to hire a negro to raise it, and he objected. She would go out upon the streets, and send the little boy down to the printing office, or leave him out on the streets. There was no serious difficulty between this couple until about the date of the separation. At this time, plaintiff received a bunch of letters through the mail, which he recognized as being in the handwriting of his wife, and directed to Dr. Keplinger. As to who mailed him the letters, the record is silent. There were four or five of these letters. Plaintiff identified them as being in the handwriting of his wife, and intended for Dr. Keplinger. Defendant denied writing the letters, or knowing anything about them, but other letters were introduced which defendant admitted were hers. One witness testified that defendant admitted to him that she wrote the letters; in fact, the evidence is clear and convincing that the letters were written by defendant, and intended for Dr. Keplinger. These letters were in endearing terms, in one of which she says:
In another instance she says:
It appears that Dr. Keplinger had been called to treat defendant's mother, who was staying at plaintiff's and defendant's home at the time. Keplinger and plaintiff were good friends. They had gone out together on picnic parties, and plaintiff had taken him into his home, having the highest regard and respect for him, and the Keplinger and Ferguson families were on intimate terms prior to the disclosure of the letters. Plaintiff, on one occasion, went to the office of Dr. Keplinger to see him about some contemplated trip which they were intending to take. After waiting some time in the outer office, Dr. Keplinger looked out, and appeared very much surprised to see plaintiff, and asked him if he was looking for his wife. Plaintiff replied that he was not, as he did not know that his wife was there. She soon came out,...
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