Fite v. Fite
| Decision Date | 12 August 1946 |
| Docket Number | 6580 |
| Parties | FITE v. FITE |
| Court | Missouri Court of Appeals |
William A. Moon and Harold T. Lincoln, both of Springfield, for appellant.
Charles W. Dickey and A. Ronald Stewart, both of Springfield, for respondent.
VANDEVENTER
On the 9th day of January, 1945, Lois Fite filed a petition for divorce in the Circuit Court of Greene County, Missouri. A summons was served on her husband, Joseph Cecil Fite, on January 10, 1945. On January 11, he filed his answer and cross-bill and the case was tried on January 27, which resulted in the court dismissing the cross-bill and rendering a decree in favor of the plaintiff on her petition giving her a divorce and care and custody of their infant child, the sum of $ 30 per month alimony and $ 10 per month for support of the child and the sum of $ 50 with which to compensate her attorney. Right of visitation was given defendant on every Saturday afternoon or every Sunday afternoon of each week between the hours of 1:30 and 5:30 p.m.
The petition alleged as indignities that defendant was quarrelsome and nagging, that he told her he no longer cared for plaintiff, had become cold and indifferent and at various times had struck plaintiff on or about the arms and face; that because of these indignities she left him on January 8, 1945; that there was born of the marriage one daughter, 14 months of age; that defendant had personal estate or money in the value of $ 1000 and a salary of approximately $ 200 per month. Plaintiff prayed for divorce, restoration of her maiden name, alimony and child support.
The answer denied the allegations of the petition -- except as to the marriage, the separation and the child. The cross-bill alleged indignities in that plaintiff failed and refused to clean their house or to do her duties as a wife and housewife, that she occasionally swept the floor by brushing a pile of filth into a corner of the room; that she failed and refused to prepare defendant's meals; that she neglected her household duties by leaving her home filthy and dirty, with unwashed dishes piled in the kitchen, never making the beds and neglecting the care of their minor child by leaving it in a filthy and wet condition until the child was blistered and sore from such treatment. That plaintiff told defendant she did not love him anymore and would leave him if it were not for the child; that she quarreled, nagged and cursed defendant without any provocation, that he was a bus driver and was away from home from 12 o'clock noon until 2 o'clock the next morning, that plaintiff would refuse to tell him where she had been or what she had done in his absence but would tell him that she would go 'where she damned pleased' and it was none of his business where she went when he was away; that she would smoke cigarettes and drink beer in his absence over his objections, knowing that he did not believe in it and did not drink or smoke himself. That she constantly insisted on his accompanying her to night spots when he was tired after coming in from his run. It was further alleged that she was in poor health suffering from tuberculosis, had at one time been in Mt Vernon for treatment, that one lung was collapsed and the plaintiff was not a fit and proper person to have the care and custody of their child. That upon his return from his run on the 8th day of January, 1945, he found that plaintiff had moved all the furniture from their house with exception of a few articles, had taken their child and had left defendant after selling the furniture, all without cause or provocation. He asked for a divorce and the care and custody of their infant child.
The evidence on the part of plaintiff showed that she had at one time been afflicted with tuberculosis and had been in the State Sanitorium at Mt. Vernon taking treatment, that she had had one lung collapsed, which was the proper treatment under the circumstances, that her health improved because of this treatment, and there was very little, if any, danger of transmission of the disease. Plaintiff testified that she married defendant April 15, 1942, that they had separated twice before this occurrence but had gone back together upon defendant promising to conduct himself properly; that defendant quarreled at her because of her health, the condition in which she kept the house and the way she treated their infant child, that while she was in a pregnant condition he said he was ashamed of her, would not go anywhere with her, would take a bus ahead of her so he would not be seen with her. That she was compelled to carry in coal when he was absent on his runs in order to keep the fires built, that he had struck her numerous times and that on at least three of these occasions, it was in the presence of Mrs. Trotter; that at one time he had struck her when they were playing a game -- at another time when she misaddressed a Christmas card and on still another time at the Trotter home. That he would curse her and quarrel at her and call her vile and scurrilous names -- objected to her having a baby because of her physical condition, and asserted it would be born without lungs. That her husband would come home about 2 o'clock in the morning from his run, would sleep until about 9 o'clock. She could not do any work while he was sleeping because he objected to the noise, that he objected to the phone ringing, that he would not buy her any clothing except one suit, that he was stingy about the grocery bill, insisting for a two week's period that it not exceed $ 20.00 and at one time he notified the grocer that he would not pay the bill if the groceries were purchased for plaintiff's sister, who seemed to be staying with them. She further testified that she left him on the afternoon of the 8th of January after he had gone out on his run, took some of the furniture and sold it -- approximately $ 200 worth -- and went to her mother's; that she was at her mother's on the evening of the 9th when defendant came over and pushed open the screen door, kicked in the other door, seized the child and left with it. Later that night at the police station an agreement was reached whereby she, plaintiff, would keep the child until the divorce case was heard. That after he had seized the child and ran away with it, he got in an automobile at a short distance from the house and while she was attempting to get in the automobile, he pushed her off the running board. She stated that she refused to tell her husband where she had been in his absence when he would question her. She denied keeping her home or the child in a dirty condition. She testified that her husband's salary was about $ 200 a month. She further stated that her husband knew she smoked cigarettes before they were married and had purchased her some, that she had drunk beer only one time after their marriage and that was when defendant brought it to the home when her brother and his wife were present. Mrs. Gladys Holbert, who ran the grocery store at which they traded, testified that they had an account with her, which defendant always paid, that she had known plaintiff since she was a little girl, and that she knew nothing against her reputation. That the grocery bill averaged from $ 17 to $ 21 each two weeks and that defendant had told her not to let the bill run over $ 20 for two weeks. She further stated that she had never been in the Fite home after the baby was born. Mrs. Juanita Trotter testified that she was a lifelong friend of the plaintiff, had been in the Fite home many times before and after the baby was born, had gone places with the Fites, that she had seen defendant strike plaintiff twice when plaintiff and defendant were quarreling about whether plaintiff should accompany defendant some place, and that was before the baby was born. That defendant struck plaintiff on the face and arms with his fist and did not take her with him. That at one time plaintiff showed her bruises which she said had been caused by defendant. At another time, Mrs. Trotter said she saw defendant strike plaintiff when they were addressing Christmas cards. She said she had been to the Fite home and had never seen the baby 'filty dirty,' only as children generally get when playing or eating; that plaintiff took good care of the child, that she had heard them quarrel about plaintiff getting breakfast for defendant. She further testified that she had heard defendant say he did not want the baby and that he said the baby would be born without any lungs; that witness had seen plaintiff carry in coal at various times; that witness lived about one-half block from the Fites.
On behalf of the defendant two police officers and the jailer at the county jail testified that they saw the child the evening of January 9, at the county jail. This was about 45 minutes or an hour after defendant had seized the child at the home of plaintiff's mother. They testified that its clothing was dirty, that the child was dirty and filthy and seemed to be very irritable. That its legs and body were 'galded' and the child seemed to be in pain, that it could not bear for its legs to be touched or pressed together. One of them testified that the dirt and filth on the child did not appear to be a matter of a few hours accumulation.
Defendant admitted quarreling at his wife but alleged that it was caused by the fact that she would not attend to her household duties, keep their child clean, keep the house clean, iron his shirts or do the things that a housewife was supposed to do. He stated that his pay averaged $ 77 for two weeks after deductions. He stated that he and plaintiff had lived at 1114, 1116 and 1118 W. Poplar during all their married life except one month, and that their house as a rule was dirty. When it came time...
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