Frederick v. Frederick, No. 9024

CourtCourt of Appeal of Missouri (US)
Writing for the CourtSTONE; TITUS, P.J., and HOGAN
PartiesSam FREDERICK, Plaintiff-Appellant, v. Rose Ann FREDERICK, Defendant-Respondent.
Docket NumberNo. 9024
Decision Date14 January 1971

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463 S.W.2d 65
Sam FREDERICK, Plaintiff-Appellant,
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

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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

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