Garton v. Garton
| Decision Date | 03 March 1952 |
| Docket Number | No. 21722,21722 |
| Citation | 246 S.W.2d 832 |
| Parties | GARTON v. GARTON. |
| Court | Missouri Court of Appeals |
John T. Martin, Martin & Gibson, Sedalia, for appellant.
Paul Barnett, David Skeer and Barnett & Skeer, all of Kansas City, for respondent.
This is a divorce suit. The petition alleges that plaintiff at all times treated the defendant with kindness and affection and faithfully performed his duties as defendant's husband, but that the defendant disregarding her duties as plaintiff's wife offered him such indignities as to render his condition in life intolerable. The indignities charged relate to alleged misconduct on the part of the defendant with other men, including the act of adultery. The answer denies the charges of improper conduct; denies that plaintiff treated her with kindness and affection and faithfully discharged his duties as her husband, and affirmatively alleges that the defendant has at all times faithfully demeaned herself as the wife of plaintiff and has treated him with kindness and affection. She does not pray for a divorce or any affirmative relief other than that plaintiff's petition be dismissed. The trial resulted in a decree of divorce for plaintiff, and defendant appeals.
The case was tried as if the answer had alleged affirmative recriminatory matters, and we shall dispose of the case as though such issues were specifically pleaded. Brackmann v. Brackmann, Mo.App., 202 S.W.2d 561, 566.
Defendant makes two principal assignments: (a) That the evidence shows the plaintiff is not an innocent party within the meaning of the statute relating to divorce and, therefore, he is not entitled to a divorce; and (b) that the evidence is insufficient to prove such misconduct of defendant which would entitle plaintiff to a divorce were he an innocent party.
Briefly stated, the rule is that one spouse may not be denied a divorce on the ground of his or her misconduct unless it would entitle the other spouse to a divorce had he or she been free from blame. Rowland v. Rowland, Mo.App., 227 S.W.2d 478, 484; Rusche v. Rusche, Mo.App., 200 S.W.2d 577, 584; Patterson v. Patterson, Mo.App., 215 S.W.2d 761.
A brief sketch of the over-all picture shows that the parties were married on February 17, 1950, and spent three days together at that time; latter in the month they spent one day and night together; in June they spent three days together; in September one neight, and on November 15 were together for one night for the last time. This suit was filed January 24, 1951.
Plaintiff was a dental officer in the United States Navy, commissioned as a Lieutenant Commander, and defendant was a civil service employee. They were both stationed at the Great Lakes Naval Training Center, near Chicago, Illinois, and became acquainted in December, 1947. Plaintiff was 35 and the defendant was 25 years of age. Some months after their first meeting the acquaintance ripened into regular association, and on Labor Day week end of 1948 they were at the home of defendant's parents in Russellville, Indiana. On this occasion plaintiff proposed marriage and the defendant accepted. They agreed that the wedding should be postponed until the plaintiff completed a tour of sea duty to which he expected to be shortly assigned. He received such assignment in October, 1948, and moved to Boston where his ship was being commissioned. The parties corresponded, and at Christmas, at plaintiff's invitation, defendant visited him in Boston. Soon thereafter his ship undertook a European cruise and the parties continued to correspond. When plaintiff ascertained that his ship would dock in Newport, Rhode Island, in February, 1950, he wrote the defendant to meet him there and they would be married. Defendant made the trip to Newport with her mother and met the plaintiff, but he made no mention of marriage during the first few days, and finally defendant told him that if he did not intend to marry her she would leave and their association would end. The next morning he appeared at the hotel where defendant was staying and professed his love for her and a continuing desire to be married. They were married February 17. This was on a Friday, and the parties spent that night, Saturday night, Sunday and Sunday night together. His ship left early Monday morning for a scheduled cruise to Cuba but was to make a short stop at Norfolk, Virginia. Defendant went to Norfolk and the parties were together one night and the following day. At the meeting in Norfolk it was agreed that the defendant should return to her work at Great Lakes to await plaintiff's completion of his tour of sea duty and his re-assignment to a shore station. The defendant wanted to complete her 5-year service in order to retain a permanent civil service status.
Plaintiff's ship returned to Norfolk March 26. In his testimony he was somewhat critical of defendant for not meeting him at that time, but there is nothing in the record to indicate that defendant knew his ship would return on that date or how long it would be in port. On March 31 he wrote her a long and affectionate letter and told her that his mother and aunt had rented an apartment in Norfolk and that he was living with them when he was off ship duty. He gave her his approximate schedule to the effect that he would be in Norfolk until April 18, then out to sea, and would return the latter part of April and be there until May 12; that he would be gone until May 27 and would be in Norfolk until about June 25, and would then be gone until July 8. He hoped to be relieved of sea duty sometime in July or August. He stated that he did not think it advisable for her to come to Norfolk during the 'short stretches' he had in port, and called to her attention that she could get only a short leave and it would be best 'to save it until when I come in June.'
In May plaintiff wrote the defendant that he would soon have a 10-day leave; that he had to go to Washington, D. C. first, and would then come to Great Lakes and take her to her home in Russellville or would meet her in Russellville. They met in Russellville on a Saturday and he remained with her until the following Tuesday when he left for his hom in Sedalia, Missouri. He returned to Norfolk without again seeing his wife on that trip. On June 12 he wrote telling of his visit to Missouri and what a good time he had had sight-seeing and visiting old friends. Defendant testified that she was hurt and offended because he did not spend all of his leave with her or take her to Missouri with him.
The next letter introduced was dated July 19 and it overflows with love and affection. He stated that in a short time he would get shore leave and would arrange for an apartment for them in Portsmouth, Virginia; that he would then go to Sedalia and get some of his things and come through Russellville and get her and the things which she wanted to take for their apartment. Defendant quit her employment at Great Lakes in mid-July and went to her home in Russellville to wait for plaintiff to come for her. On July 21 he wrote her another affectionate letter. On August 3 he wrote that his leave began that day; that he would be in Norfolk about a week and would rent an apartment for them and then come for her. On the contrary, he went to Sedalia and spent two or three weeks with his mother and took her back to Norfolk on September 1. The reason he gave for not taking defendant to Norfolk with him at that time or communicating with her, was because of facts now detailed. He testified that while he was on sea duty he had received letters from his wife in which she mentioned having been at the Officers' Club and at dances in company with other people; that he learned that she was drinking with the officers and visiting with the men at the gate and frequently smiled at 'the naval officers and bell hops'; that she had left a theater and talked with a petty officer for an hour and a half; that he had also learned from a detective, whom he had employed in Chicago, that when his wife left her employment at Great Lakes to go to her parents' home in Russellville that she had made the trip in a car with a married man; that when they left her apartment in Waukegan they had driven towards Chicago. In fairness to the defendant, we will say that she wrote plaintiff telling him of this trip, but plaintiff testified that she did not tell him that she knew the man and his wife, but had spoken of him only as a salesman, and that he lived near her apartment. Defendant testified that she told him she knew this man and his wife; that he was going to a place near Russellville to get his wife and had voluntarily asked her to ride with him. Defendant did not deny frequenting the Officers' Club. Plaintiff testified that the more he thought of these occurrences, the 'madder' he got. It is quite evident that the dealy virus of suspicion and jealousy had infiltrated his mind and possibly caused him to magnify such occurrences, but it cannot be said he had no basis for his suspicion.
When defendant heard nothing from the plaintiff after his letter of August 3, she went to Norfolk about September 1 and found him at his mother's apartment. He admitted that his wife seemed in great distress, but that they said only a few words to each other at that time. On the next afternoon he went to see her at the hotel where she was stopping and mentioned that he wanted a divorce; that his wife seemed surprised and wanted to know his reason for such action. They discussed the above occurrences but she firmly denied there was anything wrong and again explained the whole situation to him. After some further conversation they had dinner together and returned to her hotel and talked for several hours and he spent that night with her. He left the next morning promising to return, but did not, and refused to talk with her on the telephone.
Shortly after plaintiff spent the night with defendant in September, he...
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