Kitchen v. Kitchen

• Decision Date: 07 May 1929
• Docket Number: No. 20389.,20389.
• Citation: 16 S.W.2d 621
• Parties: KITCHEN v. KITCHEN.
• Court: Missouri Court of Appeals

16 S.W.2d 621

KITCHEN v. KITCHEN.

No. 20389.

St. Louis Court of Appeals. Missouri.

May 7, 1929.

Appeal from St. Louis Circuit Court; Charles W. Rutledge, Judge.

"Not to be officially published."

Suit for divorce by Lula Kitchen against Walter A. Kitchen. Judgment for defendant, and plaintiff appeals. Affirmed.

Marsalek, Stahlhuth & Godfrey and E. P. Hanifan, all of St. Louis, for appellant.

Harry Clymer, of Steelville, for respondent.

BECKER, J.

This is a suit for divorce instituted by the wife, based upon allegations of general indignities. The answer of the defendant husband, beyond admitting the marriage, was a general denial. On a hearing of the case the trial court dismissed plaintiff's petition, and she in due course appeals.

While no hard and fast rule can be applied in all actions for divorce based upon allegations of general indignities, and each case must be determined according to its own peculiar circumstances (Whitwell v. Whitwell [Mo. Sup.] 300 S. W. 455; Bedal v. Bedal [Mo. App.] 2 S.W.[2d] 180; Hooper v. Hooper, 19 Mo. 355), the authorities are well agreed, however, that to constitute indignities within the meaning of the statute, the acts relied on must amount to a species of mental cruelty, must disclose a course of conduct by the offending spouse whereby the other's condition in life is rendered intolerable through repeated acts constituting indignities, and must be of such character and frequency as to be subversive of the family relation (Bedal v. Bedal, supra; Bassett v. Bassett [Mo. Sup.] 280 S. W. 430; Grath v. Grath [Mo. App.] 261 S. W. 718; Rudd v. Rudd [Mo. App.] 238 S. W. 537; Becherer v. Becherer [Mo. App.] 299 S. W. 63).

We have examined and carefully considered the evidence disclosed by the record in this case in light of what we have said above, and have come to the conclusion that the trial court properly dismissed plaintiff's petition.

Plaintiff and defendant were married in Crawford county, February 24, 1926, and lived together as husband and wife until September 8, 1926, on which day plaintiff left the defendant, and on December 2d of the same year filed her petition for divorce in the circuit court of the city of St. Louis.

Plaintiff and defendant were born near Leesburg, Mo. Plaintiff lived there with her father and mother until she was nearly 18 years of age. The defendant still lives near Leesburg on the farm on which he was born. Both have been married before, the plaintiff having been divorced from her former husband, and the defendant's former wife having died in 1916.

Plaintiff and defendant occupied a six-room house on defendant's farm, and there is testimony to the effect that the house itself and the furnishings are the average standard in that community. A son of the defendant, with his wife and two children, lived in and occupied part of defendant's house, the apartments occupied by each family being separate. Defendant's two minor sons lived with plaintiff and defendant.

It appears that the plaintiff and a grown daughter of the defendant had been friends for many years, and that the plaintiff often visited at the home of the defendant, so that she was thoroughly acquainted with the character of the home and its furnishings at the time they agreed to marry. Plaintiff herself testified, however, that prior to their marriage the defendant promised that he would fix up the house, but that after the marriage he failed to do so; that the paper on the walls was loose, torn, and dirty; that the screens in the home were in bad condition; and that there were no knobs on any of the doors, excepting on one or two. Plaintiff testified that she scrubbed, cleaned porches, cooked, washed, and ironed for all the people in the house most of the time; that when she asked the defendant to put carpets on the floors he stated it would cost too much money, and that he never did repair the screens, though asked by her repeatedly to do so; that, when after a few months the shoes and clothing which she brought with her at the time of her marriage wore out, defendant refused to buy any clothing or shoes for her, stating he did not have the money, and that he did not intend to spend any money on her. It seems that at the time of her marriage plaintiff had a policy of insurance issued on her life, the premium on which was $1 a week, the beneficiary in the policy, however, being her daughter by her former marriage. Plaintiff stated that this policy was canceled for nonpayment of premium because the defendant would not pay the premium for her; also that defendant refused to keep up the payments of $10 per month upon two lots in the city of St. Louis that she was purchasing on the installment plan, on which lots she had already paid $400; that the defendant complained about her housework and would go into the pantry to see if she was wasting anything; that he told her she used too much lard and sugar; that the defendant also told plaintiff that he did not love her; that he did not marry her because he loved her, but that he loved Goldie Hill, and had married her because he thought she was the better worker of the two; that plaintiff's mother lived some three or four miles from defendant's farm and that she visited her once a week; that, though the defendant knew she was visiting her mother, he rarely offered to send her over by wagon or by automobile; that she asked him on several occasions to take her to school entertainments, but that he refused, and that, on an occasion when they had an argument about money matters, he told plaintiff to shut her mouth; that he did not want to hear her talk any more; that the defendant received the proceeds from the sale of the eggs on the farm, as well as the money from the sale of the cream, but that he never gave plaintiff this money; that during the months that she lived with defendant he did buy her some cotton stockings, "the kind you get at a ten-cent store"; that the work she was required to do in and about the place was too much for her, and that she lost in weight and broke down in health; that, when she complained to the defendant that the work was more than she could do, he told her to let it go.

On cross-examination she admitted that in the month of August her husband took her on a two-weeks' trip to Oklahoma by motor, and that he bought her some knickers to make the trip in. She further testified that the defendant did not talk much to her and that he did not seem to care whether she was on the place or not; that he was "very chilly toward her."

Plaintiff's sister, Mrs. Schroeder, testified that she had visited plaintiff after her marriage; that the house was clean, but that there were no screens; the walls were dirty and no wall paper on them; that there was no covering on the floors; and that the furniture was "very poor." She stated that her sister's health was good when she married defendant, but that, after plaintiff left defendant and came to St. Louis and visited her, "she was a nervous wreck," and that "her clothing was torn and ragged." As to the defendant, she stated that at the time she was there on a visit he did not talk much; "acted...