Markham v. Markham
| Citation | 429 S.W.2d 320 |
| Decision Date | 03 June 1968 |
| Docket Number | No. 24911,24911 |
| Parties | Donald W. MARKHAM, Plaintiff-Appellant, v. Audree E. MARKHAM, Defendant-Respondent. |
| Court | Court of Appeal of Missouri (US) |
Wayne R. Starr, David A. Sawyer, Independence, for appellant.
DeWitt & Zeldin, Quinn, Peebles & Hickman, Kansas City, for respondent.
This is a contested divorce case which was tried on the husband's petition and the wife's cross-petition. After hearing the parties and their witnesses, the trial court entered a decree of divorce in favor of the wife. Custody of two minor children was placed with her during the school year with the husband to have reasonable rights of visitation at all times plus a more exclusive right during the summer vacations. The husband was further ordered to pay $50.00 per month per child for support and $25.00 per month as alimony. The child support payments were to abate during the summer months. The wife and mother was granted specific permission to remove the children from Missouri for an intended permanent residence in California. The husband and father has appealed, but he waives any objection to either the child support payments or alimony unless the findings of the trial court are reversed by finding him entitled to a divorce and general custody of the children.
The evidence discloses the parties were married July 10, 1960, in Martinez, California, and that they lived for approximately one and one-half years in a cottage owned by the wife's parents near Martinez. The cottage was located on a small tract adjacent to a five acre nursery owned and operated by her parents. It seems agreed that the parties were happy during this period, and the marital disharmony began after they moved to Kansas City in 1962. The resulting lack of happiness and the alleged causes thereof were presented to the trial court by the parties, and the eight witnesses called were equally divided in corroboration of the views of either. This may be seen from the conclusions set out in the briefs of both parties, and including a portion of each here will eliminate much of the necessity for detailing the testimony of all who testified. The husband asserts, The wife replies,
The trial court by its decree confirmed the latter view of the evidence, and we approach the arguments of the husband that it was an incorrect finding. He first contends the wife was not shown to be either injured or innocent. She testified that he left the home intending not to return and declared that he was going to get a divorce. At this time he took the children and moved in with a brother and sister-in-law, and she could only see the children through a screen door. This fact was denied by the husband when he declared he was told to leave, but a neighbor had observed the mother being kept from the children. If for the moment we assume her innocence, the case of Smiley v. Smiley, Mo.App., 207 S.W.2d 862, is authority for holding that abandonment for any length of time constitutes an indignity. She further complained of the husband's penuriousness. It is undisputed that his yearly earnings were near $8,000.00, but that they lived in an admittedly run down house. This fact is not as disturbing as is that evidence showing no effort was made to replace as many as four broken windows and make other minor repairs. It was also shown that the wife had been provided six dresses during seven years of marriage. After deciding to leave, he contributed about one dollar a day for her support. Recreation, if a necessity, seems to have been forgotten. Absent this trait, the other difficulties could easily have been avoided. This situation is unlike that we found in England v. England, 225 Mo.App. 725, 39 S.W.2d 429, wherein it was said: 'The testimony shows the defendant is poor; but poverty, in itself, is not a sin, nor may it be held to amount to an indignity.' However, non-support resulting from a refusal to support, when funds are available, could amount to mental cruelty and create an intolerable condition. We so held in Wright v. Wright, Mo.App., 239 S.W.2d 765, 766: 'The testimony shows that defendant was penurious to the extent that it amounted to mental cruelty * * *.' The wife further charges she was falsely accused of being 'over-friendly' with other men. The term used is extremely vague but an effort was made to give it some derogatory connotation. For example, the husband testified his wife called his brother's home and first inquired where the brother was, what he was doing, and 'then she would finally get around to asking my sister-in-law how she was.' He testified the same thing had happened with the next door neighbors, and the wife there testified as to its falsity and threatened to sue the husband for such insinuations. The evidence offered to prove the allegation is too absurd to create a semblance of suspicion on our part the accusation could have been true, and, 'Our courts of appeal repeatedly have held, and never to the contrary, that charges of...
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...fact questions because it has the parties before it and its decision is entitled to some deference on this account. Markham v. Markham, 429 S.W.2d 320, 323 (Mo.App.1968). In the review of a court tried dissolution case, the decree must be sustained unless it is not supported by substantial ......
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