Fudge v. Fudge

• Decision Date: 20 March 1962
• Docket Number: No. 30670,30670
• Citation: 355 S.W.2d 381
• Parties: Verdie Hazel FUDGE, (Plaintiff) Appellant, v. Robert Lincoln FUDGE, (Defendant) Respondent.
• Court: Missouri Court of Appeals

Page 381

355 S.W.2d 381

Verdie Hazel FUDGE, (Plaintiff) Appellant, v. Robert Lincoln FUDGE, (Defendant) Respondent.

No. 30670.

St. Louis Court of Appeals, Missouri.

March 20, 1962.

Motion for Rehearing or Revision of Opinion Denied April 12, 1962.

James P. Hayes, John F. White and Hayes & Hayes, St. Louis, for appellant.

Paul Taub, Overland, for respondent.

ANDERSON, Presiding Judge.

This is a divorce suit brought by Verdie Hazel Fudge against Robert L. Fudge. Defendant filed a crossbill wherein he sought a divorce from plaintiff on the grounds of general indignities. A reply was filed by plaintiff which admitted the marriage, the separation of the parties, the residences of the parties, and that no children were born of the marriage. It also contained a general denial of all allegations except those admitted. When the cause came on for hearing plaintiff dismissed her petition, and the cause then proceeded on defendant's crossbill and plaintiff's reply thereto. The hearing resulted in a finding and judgment in favor of defendant. Plaintiff has appealed from the judgment.

In this court plaintiff concedes that defendant's evidence shows her to be guilty of conduct which would entitle defendant, if he were an innocent party, to a decree of divorce. But plaintiff contends that defendant's own evidence shows that he is not an innocent party, and for that reason the judgment should be reversed.

The testimony shows that these parties were married April 26, 1946. During the time of the marriage these parties, for several years, owned and operated a tavern in Ballwin, Missouri, where 3.2 beer and food was sold. Defendant worked at his trade as a plumber during the day and at the tavern during the evening hours.

The defendant's evidence tended to prove a sufficient number of the charges in the crossbill to warrant the granting of a divorce to him on the grounds of indignities. It would serve no useful purpose to detail the sordid story told by defendant and his witnesses concerning the conduct of his wife, in view of the admission made in this court on her behalf. Suffice it to say that defendant, and seven witnesses produced by him, gave extensive testimony in support of the allegations made against plaintiff. In general this testimony was to the effect that plaintiff was drunk on many occasions, cursed her husband frequently in the presence of others, falsely accused him of associating with other women, performed disgusting acts while intoxicated in the presence of others, to the great embarrassment of defendant, and struck and beat defendant on several occasions. Plaintiff did not take the witness stand to deny any of this evidence, nor did she present any witnesses to testify in her behalf. We are convinced by the evidence that plaintiff was guilty of conduct which would have entitled defendant to a divorce if defendant was an innocent, as well as an injured, party.

The burden was on the defendant not only to prove marital misconduct on the part of plaintiff, but also to show affirmatively that he was an innocent party. Ellebrecht v. Ellebrecht, Mo.App., 243 S.W. 209; Simon v. Simon, Mo., 248 S.W.2d 560. Where both parties are guilty of misconduct constituting grounds for divorce, neither should be granted a divorce. Freebairn v. Freebairn, Mo.App., 349 S.W.2d 486; Cherry v. Cherry, 225 Mo.App., 998, 35 S.W.2d 659; Harris v. Harris, Mo.App., 223 S.W. 771; Coons v. Coons, Mo.App., 236 S.W. 358; Miles v. Miles, 137 Mo.App. 38, 119 S.W. 456; Wallner v. Wallner, 167 Mo.App 677, 150 S.W. 1082; Collett v. Collett, 170 Mo.App. 590, 157 S.W. 90; Wells v. Wells, 108 Mo.App. 88, 82 S.W. 1103.

Plaintiff urges that in the instant case, defendant, by his own testimony, gave evidence of conduct so...