Holschbach v. Holschbach

• Decision Date: 17 November 1908
• Parties: HOLSCHBACH v. HOLSCHBACH.
• Court: Missouri Court of Appeals

114 S.W. 1035

134 Mo. App. 247

HOLSCHBACH v. HOLSCHBACH.

St. Louis Court of Appeals. Missouri.

November 17, 1908.

Rehearing Denied December 29, 1908.

1. DIVORCE (§ 49) — CONDONATION — RECONCILIATION AND RENEWED COHABITATION.

Where a husband and wife, after a separation and instituting of divorce proceedings, became reconciled and resumed conjugal relations, they condoned each other's previous misconduct.

2. DIVORCE (§ 29)—GROUNDS—INDIGNITIES.

A husband's conduct in dividing his time between his home and his business would not amount to a statutory intolerable indignity, unless his neglect of his wife amounted to desertion, or he displayed contempt or aversion for her, or unless his neglect was so extreme as to constitute cruelty and prey on her health and spirits.

3. DIVORCE (§ 124) —PROCEEDINGS—EVIDENCE —FAULT OF WIFE.

Evidence held to show that a wife suing for a divorce was as much to blame for domestic difficulties as was her husband.

4. DIVORCE (§ 29) — GROUNDS — INDIGNITY RENDERING OTHER'S LIFE INTOLERABLE.

For an indignity practiced by a married person to render the husband's or wife's life intolerable in the statutory sense, it must amount to a species of mental cruelty.

5. DIVORCE (§ 130)—PROCEEDINGS—EVIDENCE —STATUTORY INDIGNITY.

In a divorce case, evidence held not to show conduct of either party amounting to an indignity which would render the other's life intolerable, but to show mere wranglings due to lack of conciliatory temper in both parties.

6. DIVORCE (§ 29)—GROUNDS—INDIGNITY.

A wife's jealousy of the husband's family, calling him names, refusing to drive and attend theaters with him, and fault-finding, would not constitute statutory intolerable indignities, unless carried far.

Appeal from St. Louis Circuit Court; Wm. M. Kinsey, Judge.

Divorce action by Nellie Holschbach against John P. Holschbach. Judgment for plaintiff, and defendant appeals. Reversed, and petition and cross-bill dismissed.

Judson & Green, for appellant. J. Hugo Grimm, for respondent.

GOODE, J.

These parties were married November 4, 1902, and separated finally some time in April, 1907. There had been a previous separation, which continued for six months, when a divorce suit was filed by defendant against his wife. Through the influence of plaintiff's cousin, the parties became reconciled and resumed conjugal relations. This is the second suit for divorce and was begun by the wife. The parties resided after their marriage with plaintiff's widowed mother and her family on Shenandoah avenue, until January, 1904. On October 4, 1903, a few months before they left that home, their only child, Viola, was born. The husband and wife and their families appear to have gotton along well until after the child was born, when dissensions crept in. Plaintiff and her family are Protestants, and defendant and his family Catholics; wherefore plaintiff signed a writing before the marriage, in which she recited her intention to marry defendant, knowing he was a member of the Roman Catholic Church, said she would do so understanding the marriage bond was indissoluble, except by death, would permit defendant the free exercise of religion according to the Roman Catholic faith, and permit any children born of the marriage to be baptized and educated in the faith and according to the teachings of said church. There are signs in the record that the diverse religious opinions of the parties were a principal source of their bickerings and of the estrangement of their families, who became bitter toward each other; but disagreements about religion did not cause the departure of the parties from the home of plaintiff's mother, nor was it the sole cause of the hostility that exists between the family and defendant. While plaintiff was pregnant, and especially after the child came, her mother, Mrs. Kreibohm, felt the burden of the household severely, as plaintiff could not assist her, and finally a quarrel broke out between defendant and plaintiff's brother over this matter; whereupon defendant moved to apartments on Rutger street. His wife was reluctant to accompany him, but after two weeks she went to the Rutger flat. A good deal is said in the evidence about the bad odors of a nearby livery stable, and a sewer; but, in view of the fact that plaintiff did not leave the flat because it was a disagreeable place, this evidence is of slight importance, and, moreover, the main witness for plaintiff (Dr. Fuchs) said the rooms were not unsanitary, but lacked conveniences. Quarrels occurred between the wife and husband, occasioned, it seems, by his staying away from home until late in the evening and taking his luncheon, and on three evenings of the week his supper, at his mother's home, wherein he kept an office and practiced his profession of dentistry. Plaintiff thought, too, her husband allowed his mother too much money in comparison with his allowance to plaintiff. Defendant's dental office was on the first floor of a building he allowed his mother for a home, and she and her family occupied the upper story. He paid $40 a month for the house and paid for the lighting, allowing his mother $10 a month and the use of the upper story for taking care of his office and giving him such meals as he wished to take with her. Plaintiff became jealous of a married woman, whom she found on one occasion in his office, and this contributed to produce discord.

Defendant justified his absence from home because, as he swore, his practice was for persons who were busy through the working hours of the week days, and, in order to hold his patients, he had to treat them on Sundays and in the evenings. It is conceded there was no ground for plaintiff's jealousy of the woman in question, though it persisted more or less. Other complaints are that defendant did not take plaintiff riding with him or to the theater. She admitted on the stand he asked her to go driving and she refused because he used his brother's horse, insisting he should buy a horse to use in a buggy he owned. The evidence does not show he was in the habit of going to amusements without her. These matters are rather petty, and we consider them of trivial importance, because, whatever their merit, they were condoned by plaintiff, as her previous errors were condoned by defendant by the reconciliation after the first separation. She testified she left defendant the first time because he requested her to do so and said he would no longer pay rent for the Rutger street apartments; whereas, he says she constantly threatened to go home, called him names, and abused him, was so annoying he could not attend to his business, and at last he told her she had better go home, as they were not able to get along. He swore she called him a dog, hound, cur, and other offensive epithets, and declared she would have no other child by him, and in these matters he was corroborated by other witnesses. The expressions she used with reference to having children, as related by him, are too vile to be printed. The other witnesses testified to her declarations that she would not bear any more children, but no one else repeated obscene language used by her, and, indeed, according to his testimony, what he related was spoken in private. After plaintiff went to her mother's in May, 1904, defendant instituted an action for divorce. While this action was pending, the parties met accidentally at the office of Dr. Fuchs, a cousin of plaintiff's, and he brought them together for a settlement of their troubles. He had attended her when the child was born, following which event she fell into low spirits and extreme nervousness. Dr. Fuchs attributed her condition to worry over defendant's imaginary relations with the woman mentioned, and his absence from home so much at night. At this interview between the parties, defendant said he thought it best to move away from her mother's home, in which opinion the doctor coincided. Plaintiff wanted to move into the rooms over defendant's office, Dr. Fuchs thought because of jealousy, and perhaps so she could have more of his company. According to the doctor, defendant showed a bad attitude regarding his domestic relations, and said, in substance, he would have his way about certain family matters that were in dispute, if he broke his neck in getting it. We give great weight to what occurred in Dr. Fuchs' office, and particularly to the doctor's testimony, for he was a fair and intelligent witness. At this meeting plaintiff and defendant stated to each other specifically the conditions on which they would resume married life, agreeing the Rutger street apartments were not in keeping with defendant's standing as a prominent dentist, and it seems to have been decided to procure another home soon. Defendant said if plaintiff would move back to the neighborhood he would try to get home every day to dinner, or at least three or four times a week. Plaintiff promised not to bother him about his relations with his patients or interfere with his work in any way. These stipulations of the parties do not indicate the existence of serious grievances prior to the first separation, but that the bad feeling had grown out of trifling differences. Although plaintiff and defendant went together again, their families continued to be estranged and even hostile, thereby diminishing the likelihood of permanent concord between husband and wife. After their reunion, which occurred about November, 1904, they lived in the Rutger street apartments until the second separation, in April, 1907. Plaintiff says she wanted to move somewhere else, and defendant says he offered to rent other apartments, but she would not move. They got along as they had before, and quarreled over the same causes. Just after the reconciliation, they agreed their child, Viola, should be taken on alternate Sundays to plaintiff's mother's home, and on the other Sundays to defendant's mother's home, and this arrangement was adhered to, but...