L v. N

• Decision Date: 11 July 1959
• Docket Number: No. 7751,7751
• Citation: 326 S.W.2d 751
• Parties: L_____, Plaintiff-Appellant, v. N_____, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 751

326 S.W.2d 751

L_____, Plaintiff-Appellant, v. N_____, Defendant-Respondent.

No. 7751.

Springfield Court of Appeals, Missouri.

July 11, 1959.

Motion for Rehearing Overruled Aug. 24, 1959.

Veryl L. Riddle, Riddle & Baker, Malden, for plaintiff-appellant.

Powell & Jones, Dexter, for defendant-respondent.

STONE, Presiding Judge.

As we enter upon the unwelcome and unpleasant duty of writing the closing chapter in another sordid story of marital discord and dissolution, we draw a charitable cloak of anonymity about the actors that two innocent little girls, whose custody is in issue, may not be scourged in years to come by a recorded recital of the sin and shame of their mother. On this appeal by the wife and mother from a decree dismissing her petition and awarding to the husband and father a divorce on his cross-bill and the custody of the two girls, the older born on November 20, 1950, and the younger born on September 23, 1954, the wife's complaints are that the trial court erred in dismissing her petition, in awarding custody of the two girls to the husband, and in taxing costs against her.

The parties took their marriage vows, 'till death do us part,' on March 12, 1948. The husband was then twenty-one years of age, the wife younger although her exact age is not disclosed to us. About one year and nine months later, i. e., on December 19, 1949, they separated. The primary, if not sole, cause of that separation (as well as subsequent trouble after the parties resumed habitation under the same roof on June 19, 1950) was an 'affair' between the wife and her second cousin. It is apparent from letter exhibits that the wife and her cousin had been 'going with each other' before the wife married. At some time not fixed in evidence, the cousin entered military service and, by the Fall of 1949, was airmailing to the wife sultry, romantic letters from his post of duty in Japan. Both of the samples in evidence (admittedly received by the wife) saluted her as 'Dearest Darling,' both began 'Received your letter today,' both pledged his intense, inexpressible and inextinguishable love for the wife, and both expressed a burning desire for her and a sustaining hope that they might be married. That his illicit blandishments and licentious endearments did not fall on deaf or unreceptive ears is indicated by his letter of September 17, 1949, in which he promised to 'write to you (the wife) every day I can' because 'you asked me to write to you every day.' And, in the same letter, the cousin adjured her to 'just be ready by Xmas,' promised that 'we will make up for all the time that we should have been together & wasn't,' and told the wife that 'when I do get to come home I want you to be free, & if you love me as much as you say you do you will do that for me.'

Shortly after separation of the husband and the wife, to-wit, on December 31, 1949, the wife instituted a suit for divorce in the county of the husband's residence, and service of process was had therein. Apparently not satisfied with developments in that suit, the wife employed different counsel in an adjoining county where she then resided; and, on February 24, 1950, another suit for divorce was instituted in that county. Still being a minor, this second suit was brought on the wife's behalf by the cousin's mother, as next friend; and, in her verified petition in that suit, the wife averred that the husband 'has absented himself from his usual place of abode, that he is either a non-resident of the State of Missouri or has concealed himself so that personal service of process cannot be made, that (his) present address * * * is unknown.' Upon trial of the instant case, her lame 'explanation' for this falsification under oath was that 'I didn't know that day where he was at.' Subsequently, both of the 1949-1950 divorce suits were dismissed.

When the husband and the wife were reconciled on June 19, 1950, she was carrying the child subsequently born on November 20, 1950. The husband originally pleaded in this case, and at the first hearing testified, that this child could not have been his, because (as he said) he had not seen the wife from December 19, 1949, when they separated, until about two weeks before they 'went back together' on June 19, 1950. The wife steadfastly maintained that the husband was the father of this child, her explanation being that 'we were seeing each other all during the time we were separated' and that they had intercourse 'just about every time' she saw him. The transcript does not reveal when the amorous cousin returned on furlough or how long he stayed. But, whatever the truth may be with respect to paternity of the older girl, the husband (by leave of court) amended his pleadings by deleting all denials of paternity and by admitting that both girls were born of the marriage; and, at a second hearing in this case, the father vigorously contended for the custody of both children.

The activities of the cousin during a period of several years after reconciliation of the husband and the wife in June 1950 are concealed by a blind spot in the evidence, but the 'affair' between the cousin and the wife again comes into focus some six to eight months before the final separation on February 14, 1958, when the husband 'caught them' in an alley. On that occasion, the husband found his automobile parked in the alley, waited until the cousin and the wife (one with an arm around the other and with the younger girl, then less than three years of age, asleep in the seat next to the right door) drove up in another automobile, and then 'went over and grabbed him (the cousin) by the shirt collar and * told him I'd had enough trouble with him and I wanted him to get out and leave me alone.' That this had no salutary effect upon the participants in the 'affair' is indicated by a letter dated September 9, 1957, from the wife to her sister in St. Louis. In that letter, the wife wrote that 'you might see (the cousin) up there--he is going up there to try and get a job--I sure hope he gets one'; and, after informing her sister that the cousin's wife (whom he apparently had married after 1950) had obtained a divorce and that the cousin 'has to pay her $15 a week,' the wife commented that the cousin 'needs to get a good job to pay that' and confided that 'if (the cousin) gets a good job he wants me to come up there so I will if he does get a good job where I can get by.'

The final separation came on the evening of February 14, 1958, when the husband found the wife and the cousin sitting together on a couch in the home of one of the wife's relatives. 'I (the husband) asked them outside and they wouldn't come, so I just told her to come and get her clothes.' The next day, she did so. The following month, she instituted this suit seeking a divorce, custody of both children, alimony, child support and attorneys' fees. Upon trial, the general indignities charged in her petition found no more than weak and unpersuasive support in her testimony, which (to put it charitably) lack the 'naturally compelling ring of sincerity' [Clemens v. Clemens, Mo., 235 S.W.2d 342, 346; Price v. Price, Mo.App., 281 S.W.2d 307, 311], and otherwise were wholly unproved.

Our courts long ago recognized the impossibility of formulating any all-encompassing rule as to what will justify a decree of divorce for alleged indignities and established the necessity of determining each case on its own particular facts and circumstances; ¹ but, as a guide to be followed in cases of this character, it has been said repeatedly that indignities warranting the granting of a divorce ordinarily must amount to a continuous course of conduct by one spouse constituting a species of mental cruelty, connoting settled hatred and a plain manifestation of alienation and estrangement, and rendering the condition of the other spouse intolerable through acts of such character and frequency as to be subversive of the family relationship. ² To us, it is clear that the wife conspicuously failed to prove such indignities by the husband; but, wholly aside from that, the burden unquestionably rested on her to show by a preponderance of the evidence that she was not only the injured but also the innocent party. ³ And, although the requirement of innocence does not contemplate proof of such exemplary deportment or angelic perfection as to exclude all misconduct, ⁴ we would be more simple and credulous (if not downright obtuse and stupid) than counsel and their clients have any right to suspect that even country appellate judges are, were we to embrace and accept the wife in the instant case as an 'innocent' party. Under no concept of that term and in no view of the evidence was she 'innocent.' Emphatically, we agree with the trial judge that her petition for divorce warranted nothing other than summary dismissal.

However, even though the wife be denied a divorce, she says that she should have custody of both children, and her counsel ply us with some of the commonplace truisms reiterated in most custody cases. Of course, the success of one parent in obtaining a divorce is not the controlling factor in determining whether that parent should be given custody of minor children; ⁵ such custody never should be awarded with any purpose or thought of rewarding or punishing either parent; ⁶ and, all other things being equal, custody of children of tender years naturally should be awarded to their mother. ⁷ But, there is no paucity of cases demonstrating that, where the best interests of minor children will be served thereby, custody will be awarded to the father, ⁸ for the only rigid, inflexible and unyielding principle in custody cases is that the welfare of the children is paramount and supreme. ⁹ To that principle, all others must yield and give way; and, in its application, there must be no compromise or reservation.

Our courts have said frequently that the morals of the respective parents are an appropriate...