O'Leary v. O'Leary
| Decision Date | 17 November 1964 |
| Docket Number | No. 31767,31767 |
| Citation | 385 S.W.2d 346 |
| Parties | Firman L. O'LEARY, Plaintiff-Respondent, v. Norma H. O'LEARY, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
George W. Curran, St. Louis, for defendant-appellant.
Bahn & Saitz, William S. Bahn, Husch, Eppenberger, Donohue, Elson & Cornfeld, Carroll J. Donohue, and J. Roger Edgar, St. Louis, for plaintiff-respondent.
BRADY, Commissioner.
Those portions of respondent's petition for divorce pertinent to the consideration of appellant's allegations of prejudicial error are that the parties were married in June of 1942 and separated in December of 1962; '* * * that during all that time,' he had '* * * faithfully demeaned himself and discharged all of his duties as the husband of defendant and at all times treated her with kindness and affection * * *'; but that defendant had rendered his '* * * condition in life intolerable * * *' by the following indignities: being excessively jealous without justifiable cause; constantly arguing and complaining to him about '* * * small and petty things'; causing him excessive embarrassment at his various places of employment by calling there and questioning plaintiff's whereabouts and movements; by wrongfully and erroneously accusing his fellow employees of improperly associating with him; by disliking his friends and family and refusing to associate with either. The appellant admitted the marriage and separation but denied each of the alleged indignities. The parties will hereafter be referred to by their designation in the trial court.
The defendant contends the trial court erred in granting the plaintiff a divorce because plaintiff's proof is insufficient to support a charge of general indignities. The defendant also contends the plaintiff's own evidence '* * * constitutes proof that plaintiff is not the innocent and injured party * * *.' The plaintiff did not ask for custody of the minor child born of this marriage. The defendant did not file any pleading requesting an award for support for herself or for the minor son in the event a divorce be granted. The defendant's allegations of error require a careful review of the evidence.
The petition does not contain any allegation regarding defendant's acts after their separation nor is it susceptible to any reading which would reasonably infer that plaintiff intended to base his charge of general indignities upon any of defendant's activities that occurred after the separation. This case is to be distinguished from Ezell v. Ezell, Mo.App., 348 S.W.2d 592, in that regard. Nevertheless, as shown by the factual statement set out earlier herein, in support of his allegations of general indignities, the plaintiff introduced evidence of defendant's activities which admittedly took place after these parties had separated. This evidence was not only introduced without objection but issue was joined on the matter. For example, with respect to the occasion when plaintiff drove a Margaret Horton home, the defendant gave testimony the purpose of which was to show that she was provoked into going to the Horton residence as a result of plaintiff's misconduct. If believed, defendant's testimony would prevent defendant's activities from constituting an indignity. Holmes v. Holmes, Mo.App., 251 S.W.2d 390. Accordingly, the pleadings must be deemed to have been amended by the proof to include allegations of general indignities occurring after the parties separated.
The plaintiff's evidence bearing upon the allegation that defendant was excessively jealous without cause was that in 1959 upon returning home from a party given by some friends named Young, the defendant remonstrated with the plaintiff about his conduct at the party and specifically objected to the fact he danced several times with other women. Plaintiff further testified that when he drove a Mrs. Kohler, an acquaintance of his, to a beauty shop, she left a package in his automobile which defendant found and that defendant made numerous calls to this woman to inquire about the circumstances of this trip. Plaintiff also testified that he was embarrassed on an occasion after these parties had separated when he drove a Margaret Horton home and found the defendant waiting for him in front of the Horton residence. On another occasion the telephone operator where plaintiff worked asked him to drive her to work and plaintiff put her name and address on a note which he left in his automobile so as not to forget it. Defendant found the note and made a call to the woman. This occurred after the separation. Other testimony given by the plaintiff to support this allegation was that the defendant had entered his separate abode on a pretext and there found a note from Margaret Horton written on a St. Patrick's Day card.
The defendant's evidence on this issue was that plaintiff had grown cold toward her in 1962 and that during that year the parties did not have sexual relations. She became worried about their marriage. She also testified that on the occasion when she waited in front of the Horton residence, she had received a telephone call and went there as a result of that call. Defendant also relies upon plaintiff's testimony that his automobile had been stolen while it was parked near the Horton residence and that on many occasions during the marriage the plaintiff would not come home at all and would offer no excuse or explanation for his absence.
The plaintiff's evidence in support of the allegation that defendant constantly argued and complained about small and petty things was limited to the occasion previously referred to when the parties returned home from the party in 1959. Plaintiff also testified that when defendant refused to go out with him this caused arguments '* * * on many occasions * * *.' No dates were given and in the sentence immediately preceding that testimony the plaintiff had been speaking of such occurrences taking place four or five years before the trial.
The allegation that defendant caused the plaintiff excessive embarrassment by calling at his places of employment was supported by plaintiff's testimony that in 1960, when he had not returned home on time, the defendant called his place of employment.
The transcript is devoid of any proof as to any statements or accusations made during their marriage by the defendant to any of plaintiff's fellow employees concerning their wrongful association with plaintiff. The only proof of this allegation that can be discovered in this transcript is the plaintiff's testimony that on the occasion when plaintiff drove to her home the telephone operator who worked with him defendant called her on three or four occasions and as the plaintiff put it '* * * made an issue of it * * *.' The defendant admitted she called this woman once to '* * * get the connection of her with my husband * * *.' This took place after the separation.
The plaintiff also alleged as a general indignity that the defendant disliked plaintiff's friends and family and refused to associate with either. As to defendant's dislike of plaintiff's family, the plaintiff's evidence was that in June of 1957 he had his brothers and sisters at his home for a barbecue along with some other friends. He testified: The plaintiff's sisters also offered testimony on this issue. Mrs. Fitzgerald's testimony was that after the barbecue in 1957, the defendant had called her on the phone and the following conversation had ensued: (Mrs. Fitzgerald) 'We had a very nice time.' (The (defendant) 'Well, you thought you had such a good time, you don't have good times when we are together, you just think you do.' She also testified that the defendant told her the Fitzgeralds wouldn't be coming back to the defendant's home because Mrs. Fitzgerald had insulted them. She testified that she had not been back in the plaintiff's home since that occasion. Mrs. Durst testified that she had visited in the plaintiff's home four times in the last ten years and that she did not visit more often because she felt that she was not welcome. When asked upon what she based that opinion, she testified: 'Oh, just different things that I would call on the phone to make a--we were always getting together for a picnic or something, and I would call and ask Mrs. O' Leary if she would, you know, like to come to the picnic, and she wouldn't ever answer me. So, then--they would not show up. I just thought, well, he doesn't want to see us any more. After I talked to my brother recently, why, he just said he never got the messages. Q You would leave the message and she wouldn't give him the message? A Yes, sir. Q Were you there on this particular party? A Yes, sir. Q In Mrs. Durst also testified that in the past they had stopped by the plaintiff's home but the defendant '* * * was as cold as anything, so, we just maybe stayed a couple of minutes, maybe half an hour at the latest.' She was asked if she was distant toward the defendant and replied,
The defendant's testimony on this issue was that she thought she was nice to the plaintiff's family. She gave her opinion of them in this manner: '* * * they love a good time, don't always like to pay for it.' She stated that her husband was often out of work and held eleven different jobs in the twenty years of their marriage. As a result she couldn't manage to entertain as lavishly as he wished. She...
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