Hugeback v. Hugeback
| Decision Date | 15 July 1969 |
| Docket Number | No. 33212,33212 |
| Citation | 444 S.W.2d 23 |
| Parties | William Paul HUGEBACK, Plaintiff, Respondent, v. Elaine Lois HUGEBACK, Defendant, Appellant. |
| Court | Missouri Court of Appeals |
Vernon C. Oetting, Ernest L. Keathley, St. Louis, for defendant-appellant.
Shaw, Hanks & Bornschein, Clayton, for plaintiff-respondent.
The plaintiff, William Paul Hugeback, filed suit against his wife, Elaine Lois Hugeback seeking a divorce with a count in equity asking for custody of the two minor children in the event a divorce was denied. Defendant filed a cross bill for divorce and also a count in equity asking for custody of the minor children in the event a divorce was denied.
Before the conclusion of the evidence, the court announced that he 'might advise a child custody study by the Juvenile Court,' and asked the plaintiff, the plaintiff's mother, and the defendant to 'co-operate * * * one hundred percent' with the juvenile worker.
There was no objection to the child study by either the plaintiff's attorney or the defendant's attorney. In fact, defendant's attorney asked that special arrangements be made to interview defendant's mother before she left for Taxes.
After a trial of the issues raised by the pleadings, the court denied both plaintiff and defendant a divorce and awarded plaintiff before she left for Texas. The court made a provision for the defendant to have reasonable visitation and temporary custody of the children.
Plaintiff did not appeal. The defendant has appealed the judgment denying her a divorce and awarding the general custody of the children to the plaintiff.
The parties were married May 7, 1962 and after one prior separation, were 'finally separated' on March 28, 1967. There were two children born of the marriage: Beverly Ann, August 11, 1963 and William Paul, II, July 15, 1965.
Plaintiff's petition was based upon indignities. The misconduct of the wife, among other things, was alleged to have included associating with other men, deserting plaintiff and the children, remaining away from home until late at night and spending a large amount of time in taverns and neglecting the children.
Plaintiff's count in equity alleged that the children were in his custody since the separation and were receiving proper care by plaintiff and plaintiff's mother in a stable home. Plaintiff further alleged misconduct by defendant and neglect of the children.
The defendant's cross bill was also based upon indignities and the misconduct of the husband, among other things, was alleged to have included a violent temper, the use of vile language towards plaintiff, beating plaintiff, and staying out late at night without explanation.
The husband testified, along with other witnesses, to the misconduct of the wife and adduced evidence to the following effect: Defendant moved out of their home on March 28, 1967 and left him and the two children and did not attempt to take the two children with her; defendant never inquired about the children or attempted to visit the children during the two months following the separation; defendant did telephone shortly after the separation but plaintiff's mother hung up on her. Plaintiff saw his wife in a tavern with her arms around another man and saw his wife with other men on other occasions. There was further testimony that defendant was seen every Friday and Saturday night in a tavern with Harold who played a guitar in the band and that defendant was also seen in a tavern with Butch. Defendant stated that it was not wrong to go out with Harold while married. Defendant was seated on the lap of a man, with her arms around his neck in a parked automobile. Defendant was 'feeling good' from intoxicating liquor and defendant was in an intoxicated condition on two other occasions and had to be carried off the Admiral boat in a drunken condition. Defendant's reputation for truthfulness and moral behavior is 'pretty bad.'
Plaintiff came home and found that defendant left their three and a half year old daughter unattended, and the child was crying and the defendant arrived home thirty minutes later. On another occasion plaintiff's mother visited the home of plaintiff and defendant and found the boy in the crib and the defendant not home and the defendant came home thirty minutes to an hour later.
Defendant stayed out late at night and did not return home until after 4 a.m. on one occasion and until after 1:45 a.m., on another occasion. Defendant threatened to stab plaintiff with a butcher knife. Since the separation the children have lived with plaintiff and his mother and her husband; the home they live in is owned by his mother and her husband and is on a three and one-half acre lot and has three bedrooms, bath and a half and a full basement. Since plaintiff and his mother have had the children, their health has improved and they have gained weight; at first the daughter was nervous and screamed and cried at night and a doctor put the daughter on tranquilizers; the daughter now sleeps well and is no longer on tranquilizers. Before the separation, plaintiff's mother took care of the children on Friday evening and on occasions would keep them overnight.
Defendant was called as a witness in plaintiff's case. She testified she went out with a Mike Radford and was kissing him in an automobile. This occurred after the separation.
In support of her cross bill for divorce and her count in equity asking for custody of the children, defendant and other witnesses adduced evidence to the following effect: Defendant performed her duties as a wife and took care of the children. Plaintiff threatened to kill defendant and her family. When defendant returned from the hospital after giving birth to their daughter, the plaintiff turned on the gas and closed the windows and would not allow defendant or the baby to leave. Plaintiff had a bad temper and had 'tantrums' twice a week. Plaintiff beat defendant; threw a flashlight at her; cursed her; threw a Christmas tree at her; threw a lamp and a pot of ravioli at her; hit her in the eye; hit her in the head with a glass; pulled a chunk of hair out of her head; and, knocked out her false tooth.
Plaintiff threatened to hit defendant's mother with a jack. Plaintiff threw a bowl of corn flakes at defendant's mother, and he came home in a drunken condition. Plaintiff pushed defendant into the bushes. Plaintiff locked defendant in a closet. On the day of the separation, plaintiff beat defendant and told her she had to leave or he would kill her.
On cross examination defendant admitted keeping company with Harold before the separation and that she kissed and embraced him. She had dated Michael seven or eight times and dated Harold as many as fifteen times. Before the separation she stayed in a tavern until 3 a.m. or 4 a.m. and had three or four highballs.
Defendant's mother has been a civil service employee of the federal government for ten years and has worked for about one year in Texas; however, if defendant was awarded custody of the children, she would transfer her job back to the St. Louis area and help defendant with the children. Defendant's sister, who has four children and who lives six houses from her mother's home would help baby sit. Defendant would move the children into the home of her mother in St. Louis County when the tenant moved. If defendant got custody the children would be sent to a nursery school or a 'proper' baby sitter would be employed or defendant's mother would quit her job with the government and take care of the children.
Dr. Caldwell Hamilton, the children's doctor, testified that he had seen Beverly in February, 1967 and William in April, 1967 and found nothing abnormal about them and that he had not prescribed tranqualizers for them.
A woman testified that she kept company with plaintiff and had intercourse with him twice a week and he was the father of her illegitimate child. Plaintiff denied that he had kept company with this woman but she had dated a friend of his. Plaintiff also testified that she never told him he was the father of her baby. He further testified in rebuttal and denied the misconduct developed in defendant's case.
Defendant has raised three points on this appeal: (1) The court erred in failing to find that defendant was the innocent and injured party and as such was entitled to a decree of divorce; (2) that the court erred in failing to find that the defendant was entitled to the custody of the minor children; (3) the court erred in ordering a child custody study without making the study available to defendant.
Since this is a divorce action, it is our duty to review all the evidence and reach our own conclusion as to the proper judgment to be entered. However, great deference should be given to the finding of the trial court, who had the parties before him and was in a much better position to...
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