Frederick v. Frederick

• Citation: 463 S.W.2d 65
• Decision Date: 14 January 1971
• Docket Number: No. 9024,9024
• Parties: Sam FREDERICK, Plaintiff-Appellant, v. Rose Ann FREDERICK, Defendant-Respondent.
• Court: Court of Appeal of Missouri (US)

Page 65

463 S.W.2d 65

Sam FREDERICK, Plaintiff-Appellant, v. Rose Ann FREDERICK, Defendant-Respondent.

No. 9024.

Springfield Court of Appeals, Missouri.

Jan. 14, 1971.

Frieze & Crandall, Carthage, for plaintiff-appellant.

No appearance for defendant-respondent.

STONE, Judge.

This is a divorce suit, in which plaintiff Sam Frederick seeks to terminate the marriage solemnized with defendant Rose Ann Frederick on June 16, 1922. The charging averments of his petition grounded on alleged indignities rendering his condition intolerable (§ 452.010) ¹ were categorically denied in the answer, but defendant filed no crossbill. Only dissolution of the marital union was involved, for the two children born of the marriage, a son and a daughter, are 'grown,' married, and reside with their families out-of-state. Upon conclusion of a contested trial, the court took the case under advisement and on April 8, 1970, entered a general finding of the issues in favor of the defendant and against the plaintiff, dismissed the petition, and discharged defendant with her costs. Plaintiff appeals.

At the time of trial, March 25, 1970, plaintiff was sixty-seven years of age and defendant was 'a year older.' They had been married in Nebraska and had lived there for some time; but they had resided in Sarcoxie, Missouri, for sixteen years prior to trial, during that entire period occupying the same modest five-room house, title to which was held by them jointly. During the last eight years of that period, plaintiff had been employed by one Wild. The precise nature of his work was not shown, but it apparently was on a farm since plaintiff said 'when there isn't any colts born, I work in the daytime . . . if there is colts born, I work at night.' His employment was 'part-time,' he worked 'only a half a day at a time,' and his hours were 'different' and 'irregular.' His rate of pay was $1.25 per hour, and his earnings were characterized by his counsel as 'meager.' There was no statement or estimate of the dollar amount of his earnings at any time; but, even in earlier days when he may have worked longer hours and may have had somewhat larger paychecks, those he gave to defendant 'didn't go far' and by the time the household expenses were paid 'there wasn't anything left.' Defendant testified that for her personal use plaintiff 'never gave me any money'--'never gave me a dime,' by reason of which she had found it necessary to work as a baby-sitter in other homes 'ever since I have been in Sarcoxie.'

Plaintiff's petition charged defendant with a motley melange of alleged indignities, ranging from the petty complaint that 'defendant refuses to let plaintiff see letters from their children' to the grave accusation that 'defendant has threatened on many occasions to kill plaintiff.' With respect to the petty letter-reading complaint, defendant agreed 'I think I've always read the letters'; but she dismissed her alleged refusal to permit plaintiff to see them with these comments, 'well, land, they laid right there'--'I can't remember' that he ever asked to see one of them but 'I'd say he never did.' As for the grave death-threat accusation, plaintiff's own testimony minimized its significance, if not inviting disregard thereof. According to plaintiff, 'at least once' defendant had said 'she was going to get a gun and shoot me, but then I wasn't too scared of it, I guess.' He agreed 'that didn't scare' him and he 'didn't really take these threats seriously.'

The foundation of plaintiff's case and of his counsel's argument here is that defendant argued, fussed and nagged 'at all hours of the day and night' and that she cursed him in 'really loud' manner, and the record leaves no room for doubt but that she indulged in conduct of that character. Plaintiff so stated; three across-the-street and next-door neighbors, accepting the terminology employed in questions propounded by plaintiff's counsel, agreed that they had heard defendant 'cursing and reviling' plaintiff during the evening hours 'with some degree of frequency'; and defendant quickly agreed on cross-examination that she had fussed and quarreled with plaintiff, had cursed him, and (again in the words of plaintiff's counsel) had 'used vile and abusive language towards him.'

If, as we here assume arguendo, such episodes amounted to an intolerable continuous course of conduct connoting settled hatred and a plain manifestation of alienation and estrangement equaling a species of mental cruelty and evidencing a course of action whereby plaintiff's condition was rendered intolerable, they would have constituted indignities within the contemplation and meaning of § 452.010. McGehee v. McGehee, Mo.App., 448 S.W.2d 300, 302(2). But it would not have followed necessarily and as a matter of course that plaintiff was entitled to a decree of divorce, for the burden unquestionably rested on him to show by a preponderance of the credible evidence that he was not only an injured but also an innocent party (Simon v. Simon, Mo., 248 S.W.2d 560, 562(1); O'Leary v. O'Leary, Mo.App., 385 S.W.2d 346, 351(3); L_ _ v. N_ _, Mo.App., 326 S.W.2d 751, 754, and cases collected is note 3), this requirement being 'neither more nor less than an application of the equitable doctrine of 'clean hands' to a divorce action.' Franklin v. Franklin, 365 Mo. (banc) 442, 446, 283 S.W.2d 483, 486(7); Day v. Day, Mo.App., 433 S.W.2d 52, 54. Of course, the requirement of innocence did not necessitate proof of such exemplary deportment or angelic perfection as to have excluded all misconduct by plaintiff but rather a showing that, in the circumstances of the case, he had not been guilty of such conduct as would have entitled defendant prima facie to a divorce, if she had been free from blame. Reeves v. Reeves, Mo.App., 399 S.W.2d 641, 645(4); Cadenhead v. Cadenhead, Mo.App., 265 S.W.2d 426, 436(6); Pipkin v. Pipkin, Mo.App., 255 S.W.2d 66, 68(2). In considering whether such showing was made, the trial court no doubt was mindful, as we also must be, that one spouse may be guilty of acts which explain and afford justification for outbursts of ill-considered conduct on the part of the other or, differently phrased, that one spouse will not be heard to complain of acts into which he (or she) has goaded the other. Reeves v. Reeves, supra, 399 S.W.2d at 645, and cases collected in notes 5 and 6; Schwarz v. Schwarz, Mo.App., 427 S.W.2d 734, 740(8).

Agreeing with his counsel (as we do) that plaintiff was an injured party, the meritorious and determinative issue remains as to whether he was also an innocent party within the contemplation of the law. Plaintiff testified that the course of conduct alleged to have constituted indignities rendering his condition intolerable had continued over a period of four or five years prior to trial. Mayhap significantly the beginning of this period roughly coincided in point of time with two noteworthy events, to wit, (a) defendant's inheritance of about $4,000 from her mother's estate and (b) two surgical procedures on defendant. Some four years prior to trial, defendant received 'an inheritance' of about $4,000 from her mother's estate. She 'put it in the bank because I thought that would care for him (plaintiff) and I in our later years, but he fussed about it. Oh, he has given me a lot of trouble over that . . .. If a fellow wanted a dime, why he'd say, 'spend your money' . . .. It has been in his craw for years.' She also explained 'I need money for medical bills; I doctor all the time.' On cross-examination, plaintiff 'guessed' that defendant's inheritance had come to her 'about four years ago' but he immediately denied that the inheritance had spawned any marital trouble and insisted that 'I didn't even know she got it' and still did not know how much she had received, although conceding that he had learned 'about a year or so ago . . . she had put it in a savings account.' Out of her inheritance, defendant purchased a used 1964 Ford because she 'didn't have a way to go' and spent 'some more of it for medical bills.' The balance in her savings account at the time of trial was indicated only by defendant's statement that the annual interest on it was about $110.

Although the precise nature of the surgical procedures was not shown, defendant had 'major' surgery about five years prior to trial and 'minor' surgery 'just before that.' Whatever the precipitating (and here undisclosed) reason for surgery may have been, defendant said 'he (plaintiff) wasn't concerned about my surgery . . . he didn't come up there while I had surgery . . . and he didn't pay any of the doctor bills, not a cent.' When defendant was hospitalized on another occasion 'a couple of years ago or three . . . he did come up there to bring a letter' but again 'he didn't pay any bills.' Plaintiff's only response to this testimony was that 'I had medical insurance--I had Pyramid, and after I was 65, Pyramid canceled me out and I bought Bankers Life' but 'she (defendant) wouldn't make no claim' for her surgery. (Emphasis ours) However, defendant insisted 'the insurance wouldn't pay . . . it didn't cover it,' and there was no proof to the contrary. As for the result of the surgery, defendant declared 'it's a success' but 'I'm very nervous . . . I can't house clean like I used to' or do 'heavy laundry . . . not the heavy things.' Nevertheless, she asserted that 'I washed his clothes as much as I washed mine, and I never went dirty'--'there was clean clothes' for him but 'he's too lazy to change.'

During her trial examination, defendant made frequent mention of her nervousness, and that condition is clearly mirrored by the transcript. Although there were no doubt other contributing causes, she attributed her nervousness primarily to plaintiff's conduct. 'He'd pitch his voice and I'm very easily upset'--'I tell you he made me so nervous that I got out all I could'--'the nights was terrible; the radio and television _ _.' Answerin...