Gruner v. Gruner
| Decision Date | 07 April 1914 |
| Citation | 165 S.W. 865,183 Mo.App. 157 |
| Parties | EDWARD W. GRUNER, Appellant, v. DORINDA M. GRUNER, Respondent |
| Court | Missouri Court of Appeals |
March 3, 1914, Argued and Submitted
Appeal from St. Louis City Circuit Court.--Hon. William M. Kinsey Judge.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART (with directions).
H. E Sprague for appellant.
(1) Acts which furnish cause for divorce on one statutory ground are not necessarily confined to that ground alone; they may furnish all or part of other grounds. Cannon v. Cannon, 17 Mo.App. 390; McCann v. McCann, 91 Mo.App. 4; Million v. Million, 106 Mo.App. 683; Kempf v. Kempf, 34 Mo. 214; Williams v. Williams, 121 Mo.App. 349. (2) A wife's refusal to grant her husband sexual intercourse is not merely an element of desertion, but is an indignity. Williams v. Williams, 121 Mo.App. 349. (3) What will constitute indignities sufficient to render one's condition intolerable is a question to be determined by the facts in each case. Hooper v. Hooper, 19 Mo. 355; Kempf v. Kempf, 34 Mo. 214; Goodman v. Goodman, 80 Mo.App. 274. (4) An allowance of seven dollars per week to a wife, for the family table and support of herself, by a husband earning from $ 75 to $ 90 per month, and out of his salary paying off a mortgage on a house and lot purchased in their joint names, and renovating and repairing same, where the husband maintained a vegetable garden from which he supplied the table with seasonable vegetables, and the wife raised chickens, and retained the proceeds of chickens and eggs, and where the couple live in an outlying suburban community, is not an inadequate allowance, and does not constitute an indignity. Owen v. Owen, 48 Mo.App. 213. (5) A complete estrangement of four or five years' duration, produced by the wife, is an indignity; and a single remark by the husband is not a sufficient provocation. Griesedieck v. Griesedieck, 56 Mo.App. 94. (6) A wife who is instrumental in producing the cause for which she seeks a divorce from her husband, even though such cause exist, cannot avail herself of it because of her having contributed to the result. Davis v. Davis, 60 Mo.App. 556. A fortiori, defendant should not be permitted to maintain her cross-action on the ground of desertion. (7) Domestic unhappiness, produced by uncontrolled temper and a lack of conciliatory spirit of the parties, will not justify a divorce to either party. Webb v. Webb, 44 Mo.App. 229; Holschbach v. Holschbach, 134 Mo.App. 247. (8) Though appellate courts, in divorce cases which contain conflicting testimony involving the credibility of witnesses, will defer to the findings of the trial court, because of its superior opportunity of judging of such credibility, still an appellate court is not bound by these findings, and if enough remains in the evidence, after all contradicting and conflicting testimony is excluded from consideration, to reach an independent conclusion, the appellate court will do so. Davis v. Davis, 60 Mo.App. 557. (9) The trial court found defendant was at fault; if both husband and wife are at fault neither is entitled to receive a divorce. Barth v. Barth, 168 Mo.App. 423; Torlotting v. Torlotting, 82 Mo.App. 201; Lawlor v. Lawlor, 76 Mo.App. 637; Morrison v. Morrison, 62 Mo.App. 299; Nagel v. Nagel, 12 Mo. 53. (10) A court will not attempt, with nicely adjusted scales, to weigh which of the parties is the most or the least in fault, but will award a divorce to neither. Barth v. Barth, 168 Mo.App. 427. (11) If the trial court's findings of fact are sustained, his ruling is in error for under his findings no divorce should be granted. Barth v. Barth, 168 Mo.App. 428.
Edward A. Raithel for respondent.
(1) The rule of practice is that appellate courts will review the evidence in divorce cases, but where there is great conflict in it, much weight will be given to the finding of the trial court, which is by far the best judge of the credibility of the witnesses. Nichols v. Nichols, 39 Mo.App. 291; Bryden v. Bank, 15 Mo.App. 580; Snell v. Harrison, 83 Mo. 651; Sharpe v. McPike, 62 Mo. 300; Hodges v. Black, 76 Mo. 537; Royle v. Jones, 78 Mo. 403; Maget v. Maget, 85 Mo.App. 12-13; Stephenson v. Stephenson, 29 Mo. 95; Coulter v. Coulter, 22 Mo.App. 7; Greene v. Greene, 22 Mo.App. 25; King v. King, 42 Mo.App. 454; Schinstein v. Schinstein, 68 Mo.App. 205; Lawlor v. Lawlor, 76 Mo.App. 637; Munchow v. Munchow, 78 Mo.App. 99; Torlotting v. Torlotting, 82 Mo.App. 192; Hinrichs v. Hinrichs, 84 Mo.App. 31; Endsley v. Endsley, 89 Mo.App. 596. (2) Any misconduct which is a cause for divorce, may be set up or alleged in a cross-complaint as a ground for affirmative relief, although it occurred after the institution of the suit. Sec. 2372, R. S. 1909; Hoffman v. Hoffman, 43 Mo. 547, 14 Cyc. 673, 675; Halsted v. Halsted, 5 Misc. (N. Y.), 416; Blarc v. Blarc, 74 Hun. 385; Cornwall v. Cornwall, 30 Hun. 573; Strong v. Strong, 28 How. Pr., 432; Martin v. Martin, 33 W.Va. 695; Smith v. Smith, 4 Paige, 432; Wilson v. Wilson, 40 Ia. 230.
--Plaintiff commenced this action for divorce on the 23rd of December, 1909. Averring that he and his wife were married on February 25, 1890, and that they had continued to live together as husband and wife until the year 1904, the petition avers that about 1903, defendant, wholly disregarding her duty as the wife of plaintiff, became dictatorial, overbearing and abusive in her attitude toward him, called him vile epithets, spoke of him in vile language to other persons, and told other persons that plaintiff had abused her and refused to provide for her when such was not a fact; that defendant neglected her household duties, allowed dirt and filth to accumulate in their home, and when plaintiff complained about this condition, defendant acted sulky, refused to talk to him or to answer him; that she told plaintiff he "ought to go around with other women as other men did," and that all of these foregoing acts occurred on or about the years 1903 and 1904; that in October, 1905, defendant separated herself from him and from that time on, while remaining in the same house, refused to have any marital relations with him, this continuing until plaintiff left the home, about December, 1909, when he instituted this present action and that all of these acts of defendant constituted such indignities as to render plaintiff's condition intolerable. Averring that he had always demeaned himself and discharged all his duties as husband and treated defendant with kindness and affection, and that one child was born of the marriage, a daughter, eighteen years of age at the time of the institution of the action, who resides with her mother, plaintiff prayed for a divorce.
It appears that there were motions and demurrers filed to the original petition, until finally, on May 24, 1911, nearly a year and a half after the institution of the suit, defendant filed her answer and cross-bill. The answer, after a specific denial of all the averments of plaintiff, except the marriage and the fact that plaintiff had absented himself from defendant since December 23, 1909, and denying that he had faithfully demeaned himself as a husband, or that he had sustained the indignities at her hands which he set up, averred by way of cross-bill that she, defendant, is the injured and innocent party and prays a divorce from plaintiff, averring that without cause and although she had treated him with kindness and affection plaintiff had absented himself from her without a reasonable cause "for the space of more than one whole year next preceding the filing of this answer and cross-bill, without the consent and against the wishes of plaintiff, to-wit, from the 23rd day of December, 1909, up to the present time." Defendant further sets up that plaintiff had offered her such indignities as to render her condition intolerable, in this: That in January, 1903, plaintiff, in an abusive and threatening manner and because defendant refused to leave him, as he had commanded her to do, stated that he would have her head examined and bribe a physician to pronounce her insane and then procure her incarceration in an insane asylum, and that he thereupon threatened to kick her out of the house; that in July, 1903, plaintiff refused to give defendant but one dollar, the expenditure of which he compelled defendant to account to him for in a book which he directed their daughter to keep; this for the purpose of preventing defendant from at any one time securing enough money with which to purchase shoes and clothing, of which she was in dire need. That for the nineteen years of their marriage, ending in 1909, plaintiff failed and refused to provide defendant with necessary and proper clothing and apparel, or the means with which to obtain the same, although fully able to do so and although often requested by defendant therefor, and that in that period of time plaintiff had provided for defendant but one dress, two dress skirts, one winter coat and one spring coat, although defendant made repeated requests of plaintiff therefor, and that on account of plaintiff's failure and refusal to provide clothing defendant was compelled to accept cast-off clothing from friends and relatives, and that the money she received as Christmas presents and which she obtained from the sale of chickens and eggs, was used by her to purchase clothing; that on or about September, 1905, plaintiff repeatedly called and applied to her vile epithets to such an extent that it became intolerable, so that defendant was compelled to sleep with her daughter, attending, however, to all the household work, cooking, cleaning, mending plaintiff's clothes and washing, and that for the last six...
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