Galst v. Galst
| Decision Date | 12 July 1945 |
| Docket Number | 6570 |
| Citation | 188 S.W.2d 843 |
| Parties | GALST v. GALST |
| Court | Missouri Court of Appeals |
A. H Garner, of Joplin, for appellant.
Roy Coyne, of Joplin, for respondent.
VANDEVENTER
This is an appeal from the action of the circuit court of Jasper County, Division No. 1, in dismissing a divorce petition and finding against the plaintiff (appellant here.) The plaintiff who was a lieutenant in the United States Army, stationed and living at Camp Crowder, Newton County. Missouri, filed a petition alleging that he was married to the defendant on the 19th day of September, 1940, that they separated on the ___ day of March, 1944, and that at all times during the marriage, he treated her with kindness and affection but that defendant offered him such indignities as to render his condition as her husband intolerable. The allegations of indignities are as follows: (1) 'Plaintiff states that the defendant is a fanatic regarding the child born of the marriage, and apparently does not desire that the plaintiff show any affection for it or even handle it for fear that the child will catch some germ or that he will give it some germ and would not permit plaintiff's parents to even touch the child; (2) that plaintiff's work requires that he be stationed in the State of Missouri and that he provided a home for the defendant in Missouri, that shortly after coming to the State of Mossouri, the defendant returned to California and refused to reside with plaintiff in the State of Missouri and in any home that he had provided for her, but preferred to reside among her people, and in April, 1943, the defendant left plaintiff and went to the State of California (3) that she nagged, was quarrelsome and fault finding, and her conduct in general has been such that it has hindered plaintiff in his work and in the advancement in his line of work by reason of her fanatic idea, quarreling and refusing to live in a home that he had provided, to such an extent that the true intentions of the marriage has been destroyed and plaintiff forced to cease living with the defendant.'
On May 26, the defendant filed a motion (entering her appearance for the purpose of the motion only) asking that the case be dismissed because the plaintiff was not a resident of the State of Missouri or of Jasper County. After taking testimony thereon, this motion was by the court overruled. Later a motion for alimony pendente lite was filed, also an answer admitting the marriage and birth of a child, but denying all else in the petition contained. After hearing the court rendered judgment dismissing the plaintiff's petition, finding the issues in favor of the defendant and that the plaintiff was not entitled to the relief prayed for. A motion for new trial was filed containing several assignments, the substance of each of them being that the court, under the evidence, should have found for the plaintiff, and that the court committed error in not doing so.
The evidence showed that the parties were married on September 19, 1940, in Riverside, California, and that on July 7, 1941, plaintiff was inducted into the Army. He was first stationed in California, later sent to Fort Monmouth, New Jersey, and still later transferred to Camp Crowder, Missouri; that about November, 1942, plaintiff and defendant moved to Joplin, Missouri, and resided at the Mayflower Apartments until April, 1943, at which time the defendant having become pregnant, desired to go to her parents in California to stay until their baby was born. Plaintiff approved of this and took her there. The child was born July 25, 1943. The defendant testified that it was a month premature and the plaintiff that it was ten days premature. Defendant testified that the child was in ill health for months, as also did a nurse who was at the time living in California and who saw the baby frequently. The baby's doctor also wrote plaintiff that the baby was ill and should not be brought to Missouri at that time. In the meantime, defendant's mother became ill and defendant stayed there with her to take care of her until she improved in health. During this time plaintiff frequently, by letter, asked his wife to come to Joplin, Missouri, and promised he would provide a home for her. Defendant's explanation for failing to come back to Missouri was that her mother and baby were ill. She testified that her husband wrote her letters telling her it would be all right to come back to Missouri when her mother and baby recovered. Between April, 1943 and March, 1944, the plaintiff, who was an actor and a dancer, had been frequently associating with two named women in Joplin, and with others unnamed, at dances and roadhouses, and once in Kansas City. His explanation of these occurrences was, that his business was to produce plays, dances and other matters recreational which necessarily brought him in the company of these women. On the 29th of February, 1944, the plaintiff sent the defendant the following telegram from Camp Crowder, Missouri:
In a few days thereafter, the exact time is not clear, he went to California by airplane and his account of the reception is as follows:
'When I arrived home in March, 1944 -- I flew home, I had ten days leave; on my arrival I walked into the house, and I was greeted by my wife with the friendly greeting of 'Hello.' I naturally then wanted to see the baby as fast as I could; I felt a strange feeling immediately as soon as I walked in the house where my wife was. * * * I went over to touch the baby and pick up the baby and she screamed at me and said, 'Don't touch my baby.' Well, naturally, that excited me; I wanted to touch the baby more than ever. She says, 'You can't touch that baby, you will get germs on her.' After all, it is my child, and I hadn't seen the baby since shortly after it was born, and I then got the baby and held her in my arms and sat on the couch and let the baby play with my insignia and pull my hair. Her mother was sitting on the couch, the baby was having lots of fun, her mother didn't bother anything, and a woman who came in, who was a friend of my wife's and her mother, and she came in and immediately went to the baby and at the time, why naturally the baby knew her, and I asked the lady to please let me play with my child, I hadn't seen it since it was 19 days old, and when she persisted I asked her to please get away from me, it was my baby, and I hadn't seen it since shortly after its birth. Well, the woman persisted, the baby got upset and started to cry; I said, I can take care of my baby, and she said -- * * *. And the woman said, well the baby doesn't know you and she knows me and you are making her cry. I then got up and carried the baby out on the porch, which is more or less of a sun room, and I told them all to stay away from me, I was going to hold the baby and my wife then came out there, she was snooty and nasty and demanded the baby from me -- She grabbed me, scratched me, pinched my arm, and I gave her the baby and she said the baby has to eat and go to bed shortly, and I said, well, what time does the baby go to bed, and she told me in the vicinity of six o'clock, and I said I would like to stay around until the baby ests, I want to see the baby eat, and when you put the baby to bed, and then if you want me to leave I will leave, and she says I don't care what you do, I don't care if I see you or anything, so then I called my mother and father who were at the time living in Los Angeles and told them -- * * *.
'I was told that the baby wouldn't eat if I was there; however the baby did eat, and I stayed and watched her, didn't bother her any, nor upset her and then my wife put the baby to bed, and my sister-in-law drove over in her car and picked me up and we went to my sister-in-law's house and from there down to my mother and father's and I stayed up at my mother and father's during the time I was in California, with the exception of, I believe, it was two nights when my wife's stepfather spoke to me and told me that --
The defendant's account of this particular meeting is somewhat at variance...
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