Nolker v. Nolker

Citation257 S.W. 798
Decision Date20 November 1923
Docket NumberNo. 23317.,No. 22785.,No. 23376.,No. 22786.,22785.,22786.,23376.,23317.
PartiesNOLKER v. NOLKER. (four cases).
CourtUnited States State Supreme Court of Missouri

Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

Action by Pearl Hyman Nolker against Robert E. Nolker. From judgments for plaintiff, defendant appeals. Affirmed.

See, also, 249 S. W. 426.

Frumberg & Russell and Conway Elder, all of St. Louis, for appellant.

Abbott, Fauntleroy, Cullen & Edwards and A. E. L. Gardner, all of St. Louis, for respondent.

RAGLAND, J.

This is an action for divorce and alimony. It has given rise to four appeals which have been briefed, argued, and submitted together. All of them were taken by defendant. The first was from an order allowing plaintiff counsel fees, suit money, and alimony pendente lite; the second was from an order allowing additional fees and suit money on account of the first appeal; the third was from a judgment awarding plaintiff a divorce and alimony in gross; and the fourth was from an order requiring defendant to pay plaintiff certain sums as and for suit money in connection with the third appeal and for her maintenance during the pendency thereof. The questions presented on the appeal in the main case will be considered first.

The original petition was filed April 14, 1920, in the circuit court for St. Louis county. As a ground for divorce it was alleged:

"That defendant * * * did on or about the 12th day of October, 1915, without good cause, abandon her [plaintiff] and has ever since failed, refused, and neglected to maintain and provide for her. * * * That on the 19th day of May, 1916, defendant filed, in the circuit court of the city of St. Louis a suit for divorce, * * * and that from the 11th day of October, 1915, up until the filing of said petition, and ever since, the said defendant abandoned plaintiff without any cause whatever, and that said abandonment occurred long before the institution of said divorce suit and has continued continuously during the pendency of said divorce suit, and ever since."

It further alleged:

"That in said divorce case the plaintiff in this case by answer denied all the allegations made by her said husband in his petition contained, and further by way of recrimination charged, as shown by said answer, that the said Robert E. Nolker had on divers and sundry occasions since the marriage committed adultery, and had been in the habit of associating with female persons of ill repute and visiting houses of ill repute, and had committed immoral acts, and had offered to her such indignities as rendered her condition intolerable, and had subjected her to cruel treatment, and, on the evidence adduced and on a full hearing had in March, 1917, the court, on June 4, 1917, found that the said Robert E. Nolker was not the innocent and injured party, and was not entitled to a divorce, and the petition of said Robert E. Nolker for a divorce, on account of said facts, was by the court dismissed, and on January 22, 1918, the action of the circuit court was by the St. Louis Court of Appeals in all things affirmed, and the plaintiff pleads said judgment as an adjudication against Robert E. Nolker, and that he has been guilty of the wrongs charged against him in the answer and cross-bill filed in said case."

The answer referred to in the paragraph just quoted, and which was set out hæ verbae in the petition, charged specifically that defendant, Robert E. Nolker, had committed adultery with one Mrs. B____.

The petition was verified by plaintiff's affidavit annexed thereto which in all respects complied with the statutory requirements.

During the trial the court permitted the plaintiff to amend her petition by interlining the following:

"And plaintiff says that defendant, in the year 1914, in the city of St. Louis, in places unknown to plaintiff, and at Fauna Flora, in St. Louis county, the said defendant committed adultery with the said Mrs. B____; a more specific date the plaintiff is unable to give on account of lack of more specific information."

The answer consisted of five paragraphs. In the first defendant admitted the marriage, but denied all other allegations of the petition; in the second he charged that plaintiff, at the time of the institution of the suit, was a resident of St. Louis county, and not of St. Louis city; in the third it was averred that the suit was vexatious and should abate because there was then pending in the circuit court for the city of St. Louis a suit by plaintiff against defendant for maintenance, wherein an order had been made requiring defendant to pay plaintiff certain sums for attorney fees and suit money and for her maintenance during the pendency of the case; and in the fifth certain matters were set forth by way of recrimination. These latter may be summarized as follows: (1) During the greater part of their married life plaintiff, contrary to defendant's wishes, absented herself from him and lived in Paris, France, and in the city of New York; (2) during such brief portions of time as they did live together plaintiff continuously quarreled with defendant, addressed him contemptuously, swore at him, and called him vile and indecent names, all of which constituted such indignities as rendered his condition intolerable; (3) during her stay in the city of Paris plaintiff frequented cafés and restaurants of ill repute and associated on terms of familiarity with strange men encountered in such places; (4) while residing in New York she visited the apartments of various men of her acquaintance and received and entertained many of her male acquaintances at the apartment maintained by her, one of whom, a vaudeville singer by the name of Ciccolini, she addressed as "dear Chicci" and "Baby"; (5) she repeatedly, in the absence of defendant, entertained one McN____ I____ at her apartment in St. Louis, took automobile rides with him, and permitted him to commit immoral and indecent acts with her; (6) during the month of May, 1913, during the absence of defendant, she entertained two male opera singers and spent the night in the same bedroom with them; (7) in the early part of July, 1915, she committed adultery with each of two men whose names defendant is unable to state; (8) during the month of November, 1915, she visited the Jefferson Hotel in the city of St. Louis and there became intoxicated while in company with two men whose names defendant was unable to state, and when leaving them on that occasion threw her arms around the neck of one of said men and kissed him good-by; and (9) after the separation of plaintiff and defendant she permitted one Riccardi to visit her at all hours of the day and night, gave him her photograph, and addressed him in endearing terms.

It was further alleged in the answer that defendant's absence from plaintiff during its entire continuance was with her consent.

So far as material here the reply may be said to have been simply a denial of the affirmations of the answer. From the more than two thousand printed pages setting forth the evidence taken at the trial we will content ourselves for the present with outlining in a general way facts that are not in dispute, or that were established by the overwhelming weight of the evidence.

Plaintiff was born and reared in the city of St. Louis, in a home environed with influences that were calculated to develop her into a normal young woman with correct ideals of individual conduct in her relations to both her own and the opposite sex and to society as a whole. She attended school until she was about 11 years of age, after that she was under the instruction of a governess at her home until she reached her majority. She had considerable talent for music, and a large part of her education was devoted to its development. She studied piano from the time she was six years old until she was 18 and for 6 or 7 years just prior to her marriage to defendant she continuously studied singing. Defendant was also a native of the city of St. Louis. He inherited quite a fortune from his father, and both before and during his marriage he essayed an active role in both business and social affairs. He seems to have been well educated, and also to have had a fondness for music and musicians, for he had a wide acquaintance among the noted musicians and opera singers who from time to time visited St. Louis. His liking for club life was all but a ruling passion.

Plaintiff and defendant were married at her home in St. Louis January 4, 1912. Immediately following their marriage they left for Europe, where they spent their "honeymoon." About the 1st of July following they returned, and for a month or two thereafter lived with his family in the old Nolker home. On the 1st of September, 1912, they moved into an apartment in the St. Regis, on Lindell boulevard, and her sister, Mrs. Teasdale, came to make her home with them. (They then employed and thereafter continued to keep two servants, a maid and a chauffeur.) During the months that immediately followed nothing occurred that seriously disturbed their matrimonial relations. She continued to study singing and attended parties and social affairs where musical programs were chiefly featured; they frequently dined out together and together went to operas and shows. During all that time, however, he spent his evenings and part of the nights away from home on an individual quest for amusement. Even when they went to the theater together it was his custom on their return to leave his wife and her sister at the door of the apartment and then make the rounds of various clubs and drinking resorts, getting home at any time from 1 to 3 o'clock in the morning. Frequently the hour was so late that he did not deem it worth while to go to bed, but slept during the remainder of the night sitting in a chair.

In May, 1913, plaintiff went to Europe for the ostensible purpose, at least, of continuing her study of...

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