Heaven v. Heaven

• Decision Date: 18 December 1962
• Docket Number: No. 30992,30992
• Citation: 363 S.W.2d 33
• Parties: Raymond W. HEAVEN, Plaintiff-Respondent, v. Mary Ann HEAVEN, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 33

363 S.W.2d 33

Raymond W. HEAVEN, Plaintiff-Respondent, v. Mary Ann HEAVEN, Defendant-Appellant.

No. 30992.

St. Louis Court of Appeals, Missouri.

Dec. 18, 1962.

George E. Murray, Clayton, for appellant.

Henry G. Morris, St. Louis, for respondent.

SAMUEL E. SEMPLE, Special Commissioner.

This is an action for divorce instituted by the plaintiff husband wherein the defendant wife also sought a divorce upon a cross-bill. The trial court after hearing the evidence entered its decree finding against the husband on his petition and awarding a divorce to the defendant wife on her cross-bill. Plaintiff filed a Motion for New Trial and thereafter the trial court entered an order granting plaintiff a new trial from which defendant has duly taken an appeal to this court.

The two-day trial was vigorously contested. Only the gist of the testimony pertinent to the questions raised on this appeal will be set forth herein as no useful purpose will be served in setting out all of the evidence in detail.

The parties were married on January 7, 1948 and separated in August, 1960. They lived in Cedar Hill, Missouri, from the time of their marriage until 1953 and after several moves purchased a home in Meadow Acres, a subdivision in St. Louis County, where they lived together until the time of separation and thereafter have continued to live in the same place, but not as man and wife, up to the time of the trial. Plaintiff, a man 47 years old at time of trial, was and had been for some years employed as a salesman for a brewing company, whose duties required that he call on places where his employer's products were sold. Defendant was employed at several places during most of the period of the marriage and had worked for the Chrysler Corporation for some two years prior to the time of trial. One child, Timothy, eleven years old in 1961, was born of the marriage.

Plaintiff, in support of his petition for divorce, testified that defendant called him one vile name 'innumerable times' and other vile names 'always' and frequently cursed and called him vile names in front of their son. He also testified that defendant clawed him with her fingernails 'at any time.' That after the separation in August, 1960, defendant came at him with her fingernails to cut him up; that she spat on him, threw a glass of water on him, and when she came at him with her fingernails he got against the kitchen cabinet and kept her away with his feet. None of the foregoing evidence was corroborated. Plaintiff also testified that defendant cut him with scissors in the abdomen during the summer of 1960. On cross-examination plaintiff testified that an argument started in a discussion about insurance and that defendant who was manicuring her nails at the time 'swung with the scissors and her nails * * *.' 'I grabbed her by the hair and held her like that, away from me, sir, and I got cut.' Plaintiff produced a witness in rebuttal who testified that he was a neighbor of the parties. On one occasion Tim, the son of plaintiff and defendant, came over to get him to come to their home. When he got to the door, plaintiff and defendant were arguing but stopped when he entered. Plaintiff's T shirt was torn and had blood on the front of it and that defendant '* * * was pretty well messed up herself * * *', and she had a pair of cuticle scissors in her hand.

Plaintiff further testified that defendant would go out at night three or four times a week, every week, and would stay out until late hours and sometimes when plaintiff would ask her where she had been defendant would tell him it was none of his business. Plaintiff testified that he had not seen his wife out with another man but that he told her one evening, 'I think you have been in every motel in St. Louis County', and her answer was 'I have, so what.'

Defendant in her testimony denied that she ever called plaintiff by the vile name he stated she used innumerable times, and denied that she ever used such language. She further denied clawing plaintiff with her fingernails or that she had ever cut or clawed him; that she did not cut him with scissors and did not throw water at him. Defendant testified that she never went out in the evening without telling plaintiff where she was going and getting his permission to do so. She also stated that when her husband accused her of being in every motel in town or county that she ignored the accusation and made no answer to him.

Defendant in support of her cross-bill for divorce, testified that plaintiff started to drink excessively approximately thirteen years ago and came home intoxicated two or three times a week. She detailed an incident of plaintiff being drunk and lying in the front yard in public view of the neighbors and their children in August, 1959. Defendant further testified that plaintiff embarrassed and humiliated her by his intoxicated condition at a church Strawberry Festival in May of 1960. She also related specific incidents of plaintiff becoming intoxicated at a Christmas party in 1958, a party at the Coronado Hotel in 1957, a ravioli dinner on Palm Sunday in 1958, a Christmas party of the city sales department of his employer in December, 1956. Defendant had accompanied her husband to these social affairs, and to her embarrassment he became so intoxicated that he had to be helped home.

Defendant further testified that plaintiff struck her and subjected her to physical violence and that in the summer of 1954 plaintiff came home at 4 a. m. and struck her on the face and body leaving her bruised and unable to work for several days. Defendant related another incident in April of 1958 plaintiff came home about 2:00 or 2:30 a. m. and started yelling and beating defendant and pulled out some of her hair by the roots. That as a result of the beating she received she had to have three teeth extracted. Defendant also testified that on July 8, 1960, plaintiff demanded that she sign some insurance papers which defendant refused to do and plaintiff got up and started beating her. Plaintiff's version of this incident as previously set out was that defendant cut him with scissors but defendant denied so doing. This altercation was broken up by their neighbor, Mr. Leveque, coming to the door. Defendant also testified that after the separation on September 8, 1960, she and her son returned home about 11 p. m. after visiting plaintiff's sister and found plaintiff seated in the breezeway. Plaintiff had been drinking. Plaintiff threatened defendant about pulling down the garage door and thereafter came at her kicking, beating and pulling her hair and threatened to kill her. Defendant states she suffered bruises and a cut lip as a result of this incident.

Defendant stated that plaintiff had been gone from home for periods of as long as a day and a half without explanation and that his clothing would smell of perfume and defendant had been lipstick on the collar of his shirt when he arrived home.

Defendant further testified that plaintiff called her vile and obscene names over a period of years and that plaintiff humiliated and embarrassed her by accusing her in front of others of associating with other men and committing adultery with them. Defendant denied that she associated with other men in any way and on cross-examination specifically denied going to a motal with a man on the night of July 26, 1960, or at any other time. Defendant further testified on cross-examination that on the night of July 26, 1960, she had her hair fixed at the Clairol Center on Delmar and left there about 9:30 p. m., and proceeded to Hampton and Gravois and picked up a Mrs. Dover, a friend, and took her to her home in Cedar Hill.

Plaintiff's sister, a Mrs. Kerwin, testified on behalf of defendant that she had been a frequent visitor in the home of plaintiff and defendant. That she had observed defendant was a good mother and kept a very clean home. She further stated that the conduct of her brother, the plaintiff, toward his son was that '* * * at times he would be very kind; when he would have a level head * * *', 'when he was sober.' She further testified she observed him on occasions when he wasn't sober. Mrs. Kerwin also testified that plaintiff on more than one occasion when they were together accused defendant of running around with other men.

Walter Kerwin, plaintiff's brother-in-law, testified that he saw plaintiff at the church Strawberry Festival in May of 1960 when plaintiff stumbled quite a bit, talked incoherently and smelled of alcohol.

Plaintiff in rebuttal called John Wilkerson, a private detective hired by plaintiff, and Viola Wilkerson, his wife, who testified in substance that on the night of July 26, 1960, at request of plaintiff, they parked their car near the Clairol Center on Delmar; that they observed a woman answering a description of defendant (furnished by plaintiff) come out of the Clairol Center shortly after 10 p. m. and get in a Dodge automobile bearing a license number issued to defendant. The woman was observed sitting in the Dodge for a few minutes when a Ford station wagon driven by a man pulled up beside the Dodge. A few moments later the Dodge drove off followed by the station wagon and both vehicles were followed by the witnesses and were seen entering a motel. A few moments later the Dodge car and the Ford station wagon were observed in the parking lot of the motel parked near the motel units and the man and woman were observed leaving their cars but the witnesses did not see either the man or woman enter any motel room or unit. About an hour and fifteen minutes later the Dodge car driven by a woman was observed driving away from the motel. Defendant thereafter offered Gertrude Dover as an alibi witness, who testified that on the 26th of July, 1960, she was shopping in St. Louis and in the afternoon called defendant who was a friend and former neighbor and asked if defendant would pick her up that evening and drive her home. That...