Meffert v. Meffert

• Decision Date: 24 May 1915
• Docket Number: 6
• Citation: 177 S.W. 1,118 Ark. 582
• Parties: MEFFERT v. MEFFERT
• Court: Arkansas Supreme Court

177 S.W. 1

118 Ark. 582

MEFFERT v. MEFFERT

No. 6

Supreme Court of Arkansas

May 24, 1915

Appeal from Benton Chancery Court; T. H. Humphreys, Chancellor affirmed.

Decree affirmed.

W N. Ivie, for appellant.

1. The father, unless he is incompetent or unfit, is the natural guardian and entitled to the custody and control of his minor children. Kirby's Dig., § 3757; 32 Ark. 96; 95 Ark 355; 37 Ark. 30. Even as against the mother, he is generally allowed the custody of the children. 82 Ark. 461.

2. The evidence fully makes out a case in favor of the appellant. Certainly, there could be no greater indignities offered to a man of strong religious convictions than for his wife secretly, and without his consent, to take his children and have them baptized into a religious faith which she knew was repugnant to him, nor a condition more intolerable to such a man than for her to con-tinuosly bemean his faith and his church with vile and profane epithets, and that, too, in the presence of the children. We have a stronger case here than the Mosher case, 12 L. R. A. (N. S.) 820, or the McGee case, 72 Ark. 355. See also 85 Ark. 471; 9 Ark. 507; 38 Ark. 119; 44 Ark. 429.

Appellee pro se.

1. Whether the religious views of the parties are irreconcible or not, these can not be made the basis of a suit for divorce. Kirby's Dig., § 2672; 115 Ark. 32.

Adopting the view most favorable to appellant, the most that can be said for him is that his condition has become unpleasant or unhappy, but the evidence falls short of showing that his condition has seen rendered intolerable. Indignities, to be sufficient to constitute a ground for divorce, must be something more than mere matrimonial bickerings and uncongenialities which render the parties unhappy. They must consist of a course of conduct systematically pursued by the offending spouse which evinces a settled feeling of hatred and estrangement toward the other. 104 Ark. 381; 38 Ark. 119; 9 Ark. 507.

If appellee be guilty of all the conduct charged against her, she is not guilty of such indignities as constitute grounds for divorce. 105 Ark. 195; 104 Ark. 381; 53 Ark. 484; 44 Ark. 429.

If the parties are equally at fault, neither party is entitled to divorce. 80 Ark. 451; 77 Ark. 94; 53 Ark. 484.

2. The custody of the children was properly awarded to the mother. Kirby's Dig., § 2681; 85 Ark. 471; 78 Ark. 193; 75 Ark. 22; 29 Cyc. 1588; Id. 1596; 86 Ark. 473; 64 Ark. 521.

OPINION

HART, J.

J. K. Meffert sought a divorce from Emma Meffert on the ground that she had offered such indignities to his person as to render his condition intolerable. From a decree dismissing his petition for divorce and awarding his wife the custody of their young child and allowing her alimony, the plaintiff prosecutes this appeal. It appears from the record that these parties were married November 4, 1903, in Kansas City, Missouri, by a probate judge. The plaintiff was a member of the Methodist Church and the defendant of the Roman Catholic Church. After their marriage they lived in various towns in the States of Missouri and Oklahoma until December, 1911, when the plaintiff moved to Rogers, Arkansas. The defendant joined her husband in February, 1912. Prior to this time three children had been born as fruits of their marriage, two of whom had died. In November, 1912, another son was born who, at the time of the trial, was fifteen months old. The other remaining living child was a tittle daughter, then eight years old, named Bernice.

On the 29th day of September, 1913, the wife left her husband's home and went to visit her mother in another State. She returned on the 29th of October, 1913, and this suit was instituted by the husband on the 31st day of October, 1913.

J. K. Meffert testified in his own behalf substantially as follows:

Prior to our marriage my wife agreed that she would renounce the Catholic faith, but after we were married she refused to do so. We lived at various towns in the State of Oklahoma, and in some of these towns I was a member of the choir of the Methodist Church. My wife was jealous of my attention to other women, although I never gave her any cause to be so. After we came to Rogers I to some extent engaged in church work and was a member of the chair of the Methodist Church. My wife became jealous of my attention to several lady members of the choir, but I gave her no cause to be so. She frequently cursed and abused me, calling me a "darn old hypocrite," or a "damn old hypocrite." She seemed to be angered because I went to the Methodist Church and carried our little daughter, Bernice, there. She was extravagant and very neglectful of our home. On September 29, 1913, she left my home and declared that she would never return to live with me. She did return, however, on October 29, 1913, and gave a number of reasons for returning. One of them was that she wanted our little daughter, Bernice, and I refused to let her have her. In a few days I instituted this suit for divorce.

Several servant girls who worked for the parties to this suit while they lived at Rogers testified that the plaintiff was always kind and considerate toward his wife, but that she frequently cursed and abused him, calling him a "darn old hypocrite," or a "damn old hypocrite," and that one of her most frequent expressions was, "un-God." They stated that the plaintiff most of the time bathed and dressed his little daughter and took her to Sunday School; that his wife objected to his doing so and objected to his going to choir practice and church so often. They said that she frequently quarreled with him about his church and religion and used profane and vulgar language to and about him.

The defendant, Emma Meffert, testified in her own behalf substantially as follows:

My husband and I never had any serious quarrels until we came to Rogers. Prior to that time our married life had been a happy one. I have not been very well since the birth of our daughter, Bernice, who is now eight years of age. At the time of our marriage I was twenty-three years old and weighed 110 pounds. I now weigh only eighty pounds. After we came to Rogers and the birth of our son in November, 1912, I got worse and have been ill most of the time sirce then. I never objected to my husband taking our little daughter to the Methodist Church and Sunday School; but, on the contrary, encouraged it. I felt, however, that he neglected me and his home for his choir practice and his church work. I particularly objected to his attention to one of the female members of the choir mad told him so. I never thought there was any criminal intimacy between them and did not charge him with that, but I thought he paid her too much attention for a married man and complained about it. He paid no attention to my complaint. I was not extravagant, and I attended to my household duties the best I could, considering the state of my health. When I left in September, 1913, I had no intention of staying away, but went to visit my mother. When I returned home I asked my husband if he was glad to see me, and he replied that he was not, pushed me away from him, and said that I better go back to Kansas. My mother lived there. I then asked him what about Bernice, and he said that he had an old lady who was coming to keep house for him. I told him that I would not leave, and he replied that the law would make me go. Subsequently, he served notice on me and my brother, who had come with me to vacate the house. I never used profane or vulgar language toward or about him. At times when I was excited I may have used the phrase "un-God." I had trouble with most of the servant girls who stayed with me after I came to Rogers, but this was due to the manner in which they did their work.

Other witnesses, who belonged to the Methodist and Presbyterian churches, testified that they lived near the home of the parties to this suit and visited Mrs. Meffert frequently. They said that she did not use profane or vulgar language, but that she at all times conducted herself as a good wife. That she was not extravagant and did not even dress as well as her husband; and that she was nervous and excitable because she had been ill ever since the birth of her son in November, 1912.

One of these witnesses stated that at the time she left in September, 1913, she stated that she was just going home on a visit. Others stated that Mr. Meffert was frequently seen on the streets with one of the members of the choir, and that this was a source of great worry and annoyance to his wife. One of them stated that on one occasion shortly after the baby was born she was called over to attend Mrs. Meffert, who was very ill at the time, and that while there she saw Mr. Meffert walk by the house with this member of the choir and that he did not stop to inquire about his wife.

Another of the witnesses stated that she and Mrs. Meffert, while walking on the streets one day, saw Mr. Meffert and the member of the choir, above referred to, talking. Mr. Meffert left before they came up and Mrs. Meffert said to the young lady, "It is funny to me that I never see you without you are talking to my husband," and the young lady answered, "Maybe you don't like it ?" Then Mrs. Meffert said, "No, I don't like it," and the young lady again replied, "You surely don't trust him."

A physician who had attended Mrs. Meffert for about a year prior to the time he testified said she had during all that time been in a very nervous condition and that he had several times feared she would break down with nervous prostration. He testified that her condition rendered her highly excitable and that she was at all times very nervous.

The record in this case is very long and other matters testified to by the various witnesses...