L--- J--- S--- v. V--- H--- S---

• Decision Date: 03 September 1974
• Docket Number: V---,S--,No. KCD,H---,D,P,L---,J---,KCD
• Citation: 514 S.W.2d 1
• Parties: laintiff-Respondent, v.efendant-Appellant. 26748.
• Court: Missouri Court of Appeals

Page 1

514 S.W.2d 1

L--- J--- S---, Plaintiff-Respondent, v.V--- H--- S---, Defendant-Appellant.

No. KCD 26748.

Missouri Court of Appeals, Kansas City District.

Sept. 3, 1974.

As Modified on Denial of Rehearing

Allan J. Fanning, Kansas City, for defendant-appellant.

Arthur J. Kase, Kansas City, for

Arthur J. Kase, City, for plaintiff-respondent.

Before PRITCHARD, P. J., and SWOFFORD and SOMERVILLE, JJ.

SOMERVILLE, Judge.

This case involves the tragic disruption of a marriage blessed with twelve children, eleven of whom were minors (ranging from three years to nineteen years in age) living at home at the time of trial on March 5, 1973.A combination of inflationary times and a large family subjected the marriage to internecine stresses, the measure of whose indirect effect in bringing about disruption of the marriage is incapable of ascertainment.

On March 5, 1973, the trial court entered judgment whereby it granted the wife a divorce, awarded custody of the eleven minor children to her and child support in the amount of $700.00 per month, attorney fees in the amount of $250.00, and granted the husband 'reasonable visitation' rights.

On March 19, 1973, the husband filed a motion for a new trial, the cardinal thrust of which was that the amount awarded for child support was excessive.On April 24, 1973, the trial court, on its own motion, without a hearing or notice to the husband, amended the judgment entered March 5, 1973, and, additionally, awarded the wife alimony in gross in the amount of Ten Thousand and no/100 Dollars ($10,000.00) and 'attorney fees in the sum of Seven Hundred Fifty ($750.00) Dollars total, with credit in the sum of Two Hundred Fifty ($250.00) Dollars paid'.

On April 25, 1973, the husband's motion for a new trial was overruled, and he timely appealed the judgment entered March 5, 1973, and the amendment thereof by the trial court on April 24, 1973.

The husband inveighs against the judgment (and amendment thereof) entered by the trial court on five grounds.First, he claims, (a) there was a lack of substantial evidence to prove that he was guilty of 'indignities' that would entitle the wife to a divorce or to prove 'reasonable exertions' on the wife's part to relieve the indignities complained of, and (b)he was entitled to a divorce on his cross-petition because there was substantial evidence to prove 'indignities' committed against him by the wife and that he had exercised 'reasonable exertions' without success to relieve such indignities.Second, he claims the trial court erred 'by not perfecting its subject matter jurisdiction by requiring proof of the date and circumstances when respondent(the wife) signed the affidavit attached to her petition and by not requiring proof of the required residence of respondent in Missouri.'Third, he claims the trial court erred and abused its discretion by the cumulative effect of, (a) refusing to honor a stipulation of the parties to allow the husband to submit evidence as to necessary family expenses, (b) in limiting the issues before the husband's testimony was completed to 'the fault of the parties' and the amount the husband 'could pay', (c) by permitting the wife's counsel to interrupt, argue with, and insult the husband, and (d) by taking judicial notice of speculative and incompetent opinions about 'income tax deductions'.Fourth, he claims the trial court abused its discretion in awarding child support payments to the wife in the amount of $700.00 per month out of net earnings of the husband amounting to $818.00 per month because such was beyond the husband's ability to pay, was grossly excessive, and left the husband with no ability or incentive to continue gainful employment.Fifth, he claims the trial court erred, (a) in awarding attorney fees in the original judgment because the wife introduced no evidence to support an award of attorney fees and (b) in awarding alimony in gross and additional attorney fees in its modification of the original judgment because the wife introduced no evidence to support an award of additional attorney fees and had waived alimony, and the court lacked jurisdiction to award alimony in gross and additional attorney fees because more than thirty days had expired from the date the original judgment was entered and the time was not extended by the husband's motion for a new trial.This court can not refrain from noting that the five principal points asserted by the husband are far from models for the timely dispatch of cases on appeal.

This being a divorce case, it is the duty of this court to review the case de novo upon both the law and the evidence, giving due deference to the trial court's assessment of the credibility of the witnesses in view of its opportunity to personally observe them; and although the judgment of the trial court should not be set aside unless 'clearly erroneous' such is not a mandate prescribing judicial 'blindness' because in reviewing this case de novo this court must be cognizant of the further duty to reach its own conclusions based on the law and the evidence presented by the case.Schwarz v. Schwarz, 427 S.W.2d 734(Mo.App.1968);Heibel v. Heibel, 366 S.W.2d 37(Mo.App.1963);andRule 73.01(d), V.A.M.R.

In addressing the husband's first point it should be noted that Section 452.010, RSMo 1969, V.A.M.S. (in effect and controlling at the time this case was tried), in prescribing 'indignities' as a cause for divorce, clearly failed to define the term.Thus, no 'hard and fast' statutory definition exists, and, necessarily, each case alleging 'indignities' must be largely determined according to its own peculiar facts and circumstances and rests in the conscience of the court.O'Hern v. O'Hern, 206 Mo.App. 651, 228 S.W. 533(1921), andFrankenberg v. Frankenberg, 229 S.W.2d 279(Mo.App.1950).This court many years ago in Hoffman v. Hoffman, 224 S.W.2d 554, 561(Mo.App.1949) spelled out the constituent elements of 'indignities' in the statutory context, as follows:

'It has long been established as the law that where the action is based on indignities, such indignities, in the statutory sense, must amount to a species of mental or physical cruelty, or of injury accompanied with insult or hatred, and they must be such as cannot be relieved by any exertions of the injured party.Indignities such as to warrant the granting of a divorce, ordinarily must amount to a continuous course of conduct.A single act or word, or occasional acts or words, will not suffice.The course of conduct must be such as to connote settled hate and a plain manifestation of alienation and estrangement.Indignities are such acts as consist of unmerited contemptuous conduct, or words and acts of one spouse toward the other which manifests contempt, or contumely, incivility or injury accompanied with insult and amounting to a species of cruelty to the mind.'

Bearing the above in mind, the wife's evidence disclosed the following conduct on the part of the husband which extended over a period of years.He was penurious with both the wife and the children born of the marriage.In this connection the wife felt compelled to seek employment outside the home, not for the purpose of seeking her own independence, but to provide groceries and help pay the children's tuition at parochial schools.Surely the wife's efforts in this respect constituted a 'reasonable exertion' on her part to alleviate the husband's penurious attitude toward her and the children.

The husband, notwithstanding his penurious attitude toward his wife and children, apparently had funds to engage in excessive drinking and did so with considerable regularity.On five or six occasions the wife picked the husband up at the police station because he was too drunk to drive.The husband has failed to point out any 'reasonable exertion' that the wife could have exercised to overcome his proclivity for 'strong drink'.

According to the wife, the husband constantly associated with other women and would come home drunk at two or three o'clock in the morning 'and tell me how he had been out with other women and played around with them'.The husband made no effort to deny this.Moreover, he has failed to point out any 'reasonable exertion' that the wife could have exercised to overcome his promiscuous conduct.In all solemnity, the fact that she bore him twelve children during twenty-one years of marriage, nine during the last twelve years thereof, precludes any effective argument on the husband's part that his promiscuous bent could have been assuaged by the wife.

The husband was unduly severe in his punishment of the children over trivial matters.He would kick or spank them with a wooden paddle until they were 'black and blue'.The twelve year old son, at the insistence of school officials, was taken to a psychiatrist 'because he was so deeply scared of his father.'The mother did not object to the father properly disciplining the children, but she did object to his severe disciplinary methods when they were disproportionate to the matter for which a child was being punished.The father's severe disciplining of the children was a frequent subject of discussion between the mother and father, indicating a positive effort on the part of the mother to relieve the situation.

The husband has cited numerous cases which he vigorously contends constitute controlling authority for resolving his first point in his favor.This court has carefully read the cases relied on by the husband, and, without exception, they are all distinguishable on their facts from this case.A fair analysis of the cases cited by the husband reveals that while they involve one or more indignities comparable to those present in this case, none involve all of the indignities borne out by the wife's evidence.Even though one or several comparable indignities, alleged and proven, might raise doubt in the mind of a court as to the propriety of granting a complaining party a...