Lawson v. Lawson

• Decision Date: 07 December 1931
• Docket Number: No. 16552.,16552.
• Citation: 44 S.W.2d 191
• Parties: LAWSON v. LAWSON.
• Court: Missouri Court of Appeals

44 S.W.2d 191

LAWSON v. LAWSON.

No. 16552.

Kansas City Court of Appeals. Missouri.

December 7, 1931.

Appeal from Circuit Court, Nodaway County; John M. Dawson, Judge.

"Not to be officially published."

Divorce suit by Katherine M. Lawson against Everett E. Lawson. From a judgment dismissing plaintiff's petition, she appeals.

Affirmed.

Cook & Cummins, of Maryville, for appellant.

Du Bois & Miller, of Grant City, and Shinabarger, Blagg & Livengood, of Maryville, for respondent.

BLAND, J.

This is a suit for divorce. Defendant in his answer denied the charges made by plaintiff but filed no cross bill. The trial resulted in the court dismissing plaintiff's petition. She has appealed.

The facts show that the parties were married in Cincinnati, Ohio on December 29th, 1910. Plaintiff was then 18 years of age. Shortly thereafter they rented and moved to a farm in Nodaway County. Two children were born of the marriage, one 14 and the other 11 years of age at the time of the trial, which took place three years ago. Before the marriage plaintiff had not lived on a farm but knew at that time that she was coming to Missouri to live in the country. The parties lived on the rented farm for a period of four years and got along well together. At the end of this period, with the help of defendant's father, they purchased a 200 acre farm in Nodaway County, going in debt for the entire purchase price, $15,000.00. They lived on this farm until the time of their final separation, which occurred on May 10th, 1928. Both of the parties worked hard, but in spite of anything they could do they did not prosper and were not able to pay anything upon the indebtedness upon the farm, except from money they realized from the sale of 40 acres and funds borrowed from defendant's relatives. They were put to heavy expense by reason of a major operation performed upon plaintiff. Plaintiff contributed to the family coffer $1,200.00 which she had inherited.

At the time of the trial there was $11,000.00 owing on the farm and the mortgage was being foreclosed. Defendant was very frugal, having purchased but one suit of clothes in 20 years but at the time of the trial his personal property was covered by a chattel mortgage and he was indebted in a large amount for store bills. Both he and plaintiff were practically without means at the time, except their daily earnings.

The two children had spent much of the time with their paternal grandparents, who lived four miles distant. They were there while their mother was in the hospital and when they were sick. The grandparents had an unmarried son and this family became very much attached to the children and apparently this feeling was reciprocated by the latter. The children were living with the grandparents at the time of the trial.

In May, 1927, plaintiff's sister, who lived in Kansas City, had been visiting her. Defendant testified that this sister had been visiting them for the greater part of the time between January and May of said year; that he did not feel that they were able to have her visit for such a long time; that the sister had talked to plaintiff and the witness about living on the farm, saying, that plaintiff and her husband were not making anything out of the farm and that it would be better if they would sell it and go to town and that his wife became dissatisfied with staying on the farm at this time. Plaintiff testified that defendant came in one evening and not seeing her sister, inquired of plaintiff where she was. Upon being advised that the sister had gone home, he informed plaintiff that it had been his purpose to tell her to go if she had not gone. This was on Friday evening.

On Saturday afternoon defendant's mother wanted the oldest daughter to stay with her and go to a dinner on Sunday. Plaintiff wanted the girl to come home. She testified that defendant did not bring the girl back and when she asked defendant why the girl did not come home, defendant said: "It don't make a damn bit of difference Margaret Neal don't have to come home * * * that is not all, I am going to take Verna May (the youngest child) up there." Plaintiff replied: "You are not going to do it." A scuffle ensued in which defendant attempted to take the girl and plaintiff tried to keep her from going. Plaintiff testified that during this scuffle defendant "kicked me across the rump." Defendant took the girl to his mother's. Thereupon plaintiff left and filed suit for divorce. Shortly thereafter defendant persuaded plaintiff to return home, which she did and the family became re-united.

Defendant's version of this trouble is as follows: He testified that for several years prior to this separation plaintiff would take spells in which she would become angry, sullen and morose; that these spells would last for a period of a day to thirty days; that during these spells plaintiff refused to speak to him or the children; that finally these moody spells occurred so often that they were "almost continuous"; that these spells sometimes would be brought about by very trivial occurrences, such as, disappointment over failure to attend some "social" or entertainment when they could not go on account of the weather or something would interfere with their going. Defendant testified that plaintiff frequently desired to go back to visit in Kentucky or Kansas City, but on account of finances, defendant did not feel able to send her, although, at least on one occasion, it transpired that she had saved enough money from boarding school teachers on which she could have gone. However, defendant did permit her to visit her people in Kentucky two or three times, but at other times when she desired to leave home and visit there and he objected on account of finances, she would have one of these angry, sulky, ill-humored spells; that he remonstrated with her about her conduct and told her that it created an atmosphere that was not conducive to the best interest of the children; that they ought not to be reared under such circumstances. He asked her if she was not going to try "to do better." She replied that "she didn't know that she ever would"; that this conversation occurred prior to her leaving home in 1927; that he then stated to her: "If you are going to keep these moods up and live that way before these children, I am going to take this one (the younger girl) up home — `this older girl was already up to my father's at the time'"; that he thereupon took the child to the home of his parents. This was during the day time. He admitted that during the scuffle in which he attempted to get the child away from plaintiff he kicked the latter. He claimed he did not use a great deal of force.

The second and final separation occurred under the following circumstances. The encumbrance upon the farm had fallen due and defendant desired to renew it. The holders thereof were willing that this be done. Both plaintiff and defendant were required to sign the mortgage papers. They were already personally obligated upon the indebtedness. Defendant asked plaintiff to go to town for the purpose of renewing the mortgage. She refused to go because she felt that they had already made a sufficient effort to make a success out of the farm and were unable to do so. She wanted to give up the place and move to town. Defendant finally persuaded her to go to town and talk to the banker about it. When she got to town, defendant not only wanted her to sign the notes secured by the deed of trust upon the farm, but some personal notes of his to the bank. The banker told her that it was not necessary for her to sign the personal notes, but she refused to sign any of the papers on the ground that we have already mentioned and stated, "I haven't a penny in the world to pay them."

Plaintiff testified that when they arrived home defendant said to her:

"`What are you going to do with your part of these things here?' I said, `I am not going to do anything with them.'

"`Well,' he says, `Me and you are done right now, we are quit.' He said, `You can go your way, and I will go mine, and I don't give a damn what becomes of you either.' Well, I went on and put my washing on the line, and the next morning he began it again, about what I was going to do with my things. I said, `Wherever you take the things and move to, I will too,' and he said, `I will give you to understand you are not going to follow me around like that.'"

Plaintiff further testified that about a week or ten days after they returned home the younger girl was at their home and defendant desired her to go to the grandparents. The child was baking a cake and did not want to go at that time. Nothing came of the matter but during the conversation defendant said to plaintiff at one time "shut your damn mouth, I am not talking to you."

A few days thereafter the older girl was at her grandparents and the night of that day the parties engaged in a quarrel which resulted in their final separation. The younger girl slept in one room and the parents in another. The girl requested that her mother sleep with her that night because the girl was afraid. Plaintiff testified that between nine and ten o'clock p. m. defendant came up to where she was in bed with the child and asked her to go to their room with him, but she refused to go. She testified that she was angry after she refused to sign the mortgage papers after he told her to "get out" she remained angry until she left. When defendant came into the room he said, "You have been mad and I have been mad ever since you wouldn't sign those mortgage papers." When plaintiff would not leave the room with him he began to pull the child, who was half asleep, out of the bed. Defendant desired to take the child to his parents. Plaintiff said to him, "You are not going to take her" and held to her. Defendant pushed plaintiff away and...