Jenkins v. Jenkins

• Decision Date: 19 October 1965
• Docket Number: 31920,Nos. 31912,s. 31912
• Citation: 396 S.W.2d 268
• Parties: Josephine A. JENKINS, Plaintiff (Appellant-Respondent), v. Clarence R. JENKINGS, Defendant (Respondent-Appellant).
• Court: Missouri Court of Appeals

Page 268

396 S.W.2d 268

Josephine A. JENKINS, Plaintiff (Appellant-Respondent), v. Clarence R. JENKINGS, Defendant (Respondent-Appellant).

Nos. 31912, 31920.

St. Louis Court of Appeals, Missouri.

Oct. 19, 1965.

Rehearing Denied Nov. 17, 1965.

Morris B. Kessler, St. Louis, for plaintiff-appellant-respondent.

Louis S. Czech, Clayton, for defendant-respondent-appellant.

WOLFE, Presiding Judge.

This is an action for divorce brought by Josephine A. Jenkins against Clarence R. Jenkins. The defendant filed a cross-bill. The court found against the defendant on his cross-bill and granted a divorce to the plaintiff upon her petition. There were four children born of the marriage and the court gave custody of the children to the plaintiff with part time temporary custody to the defendant. The plaintiff was awarded $50.00 a week alimony and $60.00 a week for the support of the children. The plaintiff appealed, contending that the alimony and support money are inadequate. The defendant also appealed, contending that he should have been awarded the divorce on his cross-bill.

The plaintiff charged in her petition that the defendant failed to properly support his family. She averred that he associated with another woman and was cold and indifferent toward plaintiff and their children. She also alleged that he was addicted to habitual drunkenness and had been so for a year or more. The defendant answering denied all of plaintiff's allegations as to his misconduct. In his cross-bill he alleged that plaintiff was possessed of a violent temper which she displayed without cause; she criticized defendant before his friends and associates, hurting his reputation; that she refused to go out with him; objected to him taking the children to church; refused to have marital relations with him; did not visit him when he was in a hospital; refused to cook meals; and that she maintained the home in a dirty and disorderly fashion.

The evidence presented by the parties was in diametrical conflict on all of the charges that each had alleged against the other.

The plaintiff testified that on two prior occasions she had brought suit for divorce but that there had been a reconciliation and the suits had been dismissed. She and her husband still lived in the same house but she does not occupy the same bedroom. She has had no marital relations with him since before filing the suit for divorce. She testified that their home was poorly furnished because the defendant would not buy furniture and that the windows were without drapes. She had charge accounts but was afraid to use them because some checks written in payment of bills had been returned for insufficient funds.

She stated that defendant took the children to a Baptist Church near their home and she went there very seldom because it was not her church. She was a Presbyterian but did not attend her own church except on a few occasions. She said that on Sunday he took the children to the country club and let them swim throughout the day while he played cards and drank. She said that he came home drunk about three nights a week. She stated that on such occasions he would revile her and that he had pushed her against the wall, called her vile names in the presence of the children. On one occasion when she wanted to call a doctor for her daughter who was ill he refused to let her do so and because of the ensuing argument plaintiff called the police. She stated that the defendant was a reckless driver when intoxicated and that he had and three accidents because of this. The plaintiff called to the stand her two older children, ages thirteen and twelve. Her son, who was the older of the two, told of riding with his mother to a parking lot one night. He said that they saw his father's car parked there and that he was seated in it with a woman and that he had his arm up over the back of the seat. After the boy and his mother returned home his father came in and there were lipstick stains and make-up marks on his shirt. The plaintiff confronted him with the charge that he had been out with a woman but he denied it. The soiled shirt was offered in evidence by the plaintiff. It had marks upon it which she said were stains caused by cosmetics. The children corroborated the testimony of the mother about the defendant's drinking. The daughter said that one Sunday after an outing at a farm where her father had been drinking she was so frightened on the ride home that she prayed all the way. The plaintiff's sister told of the defendant coming to his home intoxicated one time when she was there with the children.

The plaintiff testified at length about her financial requirements and those of her children. She had an itemized list of various anticipated and actual expenses which totaled $950.00 a month. She put in evidence the income tax return for the preceding year in which defendant had reported an income of $25,000 as salary paid him by Keeven-Jenkins Real Estate Co.

The defendant testified that he bought the house in which they lived for $26,000. He said that his wife would not tell the builder the colors she desired in the decorating scheme so he told the builder to go ahead with the decorating and to do the best he could. They had about $1,000 at the time they moved in and some money expected from a house that they had previously owned and sold. He said that he told her to use the money to buy furniture but she replied that she would not spend a penny on the 'big old barn.' He said that his salary check which he received every two weeks was deposited in a joint checking account upon which his wife could draw.

He testified that his wife had a very hot temper and that on many occasions she had struck him. Twice she had broken his glasses. She tore his shirt off and on one occasion kicked a hole in the television set. This was denied by the plaintiff on rebuttal. He said that his home was in a disorderly condition and that he got breakfast for the children while his wife slept. He regularly took them to Sunday School which he also attended, but his wife told the children they did not need to go. He took his son to Scout meetings and a boys' baseball league games. Each Sunday in the summer time he took the children to the country club after Sunday School to spend the rest of the day. His wife did not want to go there and did not go out with them.

As to the matter relating to the woman in his automobile, he said that she had been a waitress in a restaurant where he used to lunch and that his company had sold her a house. He met her by chance on the evening in question and she said that she wanted to sell her house and move to California. He took her to dinner and was seated in his car afterwards talking about the sale of her house at the time his wife and son saw him. He denied that there were any stains on his shirt and said that he had not embraced or kissed the woman.

He presented evidence that his wife had made derogatory remarks about him in public and to his friends. As to his drinking, he said that he was a moderate drinker and that he had never been drunk. He admitted that he had had three accidents with his car but stated that these were caused because he had poor night vision...