Klenk v. Klenk

Decision Date06 April 1926
Docket NumberNo. 18631.,No. 18634.,18631.,18634.
Citation282 S.W. 153
PartiesKLENK v. KLENK (two cases).
CourtMissouri Court of Appeals

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

"Not to be officially published."

Action for divorce by Charles L. Klenk against Mayme Klenk, in which defendant filed a cross-bill. From a judgment dismissing both bill and cross-bill, both parties appeal. Appeals consolidated. Affirmed.

Thomas J. Cole and Charles A. Routs, both of St. Louis, for Charles L. Klenk.

Ferris & Rosskopf, of St. Louis, for Mayme Klenk.

BENNICK, C.

This is an action for divorce instituted in the circuit court of the city of St. Louis, Mo., by the husband, on September 21, 1921. The petition alleged such indignities on the part of the plaintiff's wife as to render his condition intolerable, consisting principally in this: That the defendant without just cause complained of the modest manner in which they were compelled to live; complained of the small amount of money which plaintiff was able to furnish her for clothes and articles of adornment; complainingly urged plaintiff to move to more pretentious quarters; frequently visited his office, and criticized plaintiff in the presence of his patients and office help; manifested a dislike for his parents, particularly for his mother; habitually neglected and refused to perform her household duties and her duties with respect to the children. Plaintiff prayed to be divorced from the bonds of matrimony contracted with defendant, and that he be awarded the custody and control of the two minor children.

Defendant filed what is denominated as an answer, in which, after denying specifically the allegations made against her in plaintiff's petition, she alleged proper performance of her household duties and proper treatment of her children; coolness and indifference of plaintiff towards her; his wrongfully forcing her to leave her home and go to Colorado, and remain there away from him and her children; his alienation of the affections of her children from her; and his refusing to support her if she did not leave. It was further alleged that plaintiff without just cause commanded defendant to leave home and not return; that by reason thereof she had been compelled to take employment; that, since the separation, plaintiff had poisoned the minds of the children against her so that on the infrequent occasions when she had been permitted to see her children her interviews with them had been brief and very unsatisfactory; that the children had been kept by plaintiff under the care and guidance of a housekeeper who was of no kin to them and was not qualified to take the place of a mother with them; that defendant makes her home with her sister and brother-in-law in the city of St. Louis in a desirable neighborhood and in the school district in which the children attend; that defendant's employment is not a matter of choice, but of necessity, and that, if plaintiff would provide for the proper support and maintenance of defendant, as he is abundantly able to do, she would not be compelled to work, and could and would give her entire time and attention to the motherly care of her children. Defendant prayed that plaintiff's petition for divorce be denied and dismissed; that she be awarded the care, custody, and control of her daughter, Marie, and that she be awarded the care, custody, and control of her son, Carl, every alternate Sunday afternoon, and on the evening of one other day of each week.

The cause was tried, and on August 25, 1922, the court entered its judgment ordering that plaintiff's bill be dismissed with prejudice, and that defendant's cross-bill be dismissed, without prejudice, for want of jurisdiction. From the judgment dismissing his appeal with prejudice plaintiff has appealed, and from the judgment dismissing her cross-bill without prejudice, but for want of jurisdiction, defendant has appealed. Inasmuch as both appeals are taken from the same judgment, and have been briefed and submitted together by counsel in this court the issues raised in both will be disposed of in this one opinion.

The evidence discloses that plaintiff is a physician, who has specialized in bacteriology, and has his principal clientele among other physicians. He was graduated from the medical department of Washington University in 1905. Plaintiff and defendant were married on February 20, 1907, and temporarily resided at the doctor's office at 2105 South Broadway; the reason therefor being that plaintiff was just starting in the practice of his profession, and felt that he did not have the means to provide better quarters.

Plaintiff testified that a short while after they were married defendant became dissatisfied with the place they were living in, and wanted a home of her own. Defendant's excuse was that they were forced to live in one very small bedroom without heat, and that the place was undesirable, because there was a saloon on one side of the office and on the other a lunch stand, which remained open all night.

In the fall of 1907 plaintiff and defendant moved to 4629 Nebraska avenue, and lived upstairs in a flat owned by plaintiff's parents. It was here that the trouble with plaintiff's parents, and particularly with his mother, seems to have arisen. Defendant and her father-in-law both testified that the relations existing between them had always been pleasant. Defendant testified, however, that her mother-in-law upon many occasions called her vile names, in which she was corroborated by plaintiff himself. It was while living on Nebraska avenue that the son, Carl, was born on November 26, 1907. The greater part of the trouble between defendant and her mother-in-law was experienced after this event. In the spring of 1911 plaintiff and defendant moved from the home of his parents to 3318 Winnebago street, where they lived for about one year. Here the daughter, Marie, was born in August, 1911. In 1912 they moved to a flat at 3509 Utah street, where they remained for several years.

As to the allegation in the petition that the defendant complained of the modest way in which they were compelled to live, and complained of the small amount of money plaintiff gave her, while it is true that there is much evidence in the record of the trouble between the parties over this matter, there is no evidence that plaintiff at any time ever gave defendant any considerable sum of money. It appears that at no time was she furnished but little more than enough money to pay for the necessary household expenses "for one day. When she would ask her husband for car fare, he would sometimes give her as much as $1. The evidence indicates that her complaints were made at times when she was in need of shoes and clothing, and that upon many of such occasions when she would ask plaintiff for money he would reply that he did not have it, and afterwards it would be disclosed that he had quite a roll of bills in his purse. At one time plaintiff opened an account at Famous Barr for defendant, upon which a few purchases were made. Later defendant gave an order at that store, which was never delivered, and upon inquiry at the office she was informed that the previous bill had not been paid, and that no more goods would be sent out. After that she bought nothing more from Famous Barr. During the latter part of the period that they were living together plaintiff opened an account for his wife at Scruggs-Vandervoort-Barney, limiting her to purchases in the sum of $25. Defendant had been paying $5 for her shoes, but, because she was unable to find shoes to fit her at Vandervoort's at that price, she purchased a pair at $7. When plaintiff received this bill, he was provoked at the idea that his wife should pay $7 for a pair of shoes, and informed her that he was going to stop her account, and, in fact, did close it. There was abundant evidence to show that defendant dressed plainly, and at times was not even supplied with necessary clothing.

As to the care of the children, we think the evidence discloses that they were well cared for both by father and mother. Defendant testified that she gave them their daily baths from the time they were infants until she was sent to Denver, and that she always saw that their clothing was clean and in good condition. Wholesome food was prepared for the children, and they were sent to school regularly. The record does show that defendant experienced considerable difficulty in controlling the son Carl, who was possessed of a bad temper, and was very troublesome; but, if she was remiss in her treatment of him, it was for the reason that she did not punish him more severely than she did. At the time of the trial she had scars on her arm from having been bitten by Carl when he was quite a small boy. Upon a certain occasion at a club a lady, who was a stranger to defendant, said something displeasing to the boy, whereupon he took hold of a baseball bat and hit her over the head.

A great part of the trouble between plaintiff and defendant arose over his retaining in his employ as office assistant, Miss Leone Ernstman, who was first employed by plaintiff about 1908. It was the practice for plaintiff and Miss Ernstman several times each week to have their lunch together in the office, the doctor bringing the food, and Miss Ernstman preparing it on the gas stove in the laboratory. Plaintiff also took Miss Ernstman with him on his professional calls in the city; and, when going into the country to get butter and eggs for the family, he would have her to accompany him, leaving his wife at home. On several occasions he took her to different clubs, and frequently took her to and from work. On one occasion he accompanied her to the Olympic Theater; leaving defendant at home with the children. He frequently had Miss Ernstman, rather than his wife, buy clothing for the children; the doctor's theory being that she had much better judgment in such matters. While his wife was in...

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