Patterson v. Patterson
| Decision Date | 08 December 1948 |
| Docket Number | No. 6749.,6749. |
| Citation | 215 S.W.2d 761 |
| Parties | PATTERSON v. PATTERSON. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Greene County; Warren L. White, Judge.
"Not to be published in State Reports".
Action by Frankia M. Patterson against Virgil W. Patterson for divorce. From the judgment, defendant appeals.
Judgment affirmed.
William A. Moon, of Springfield, for appellant.
Neale, Newman, Neale, Freeman & Wampler, Homer D. Wampler, Jr., and F. B. Freeman, all of Springfield, for respondent.
This is an action for divorce, filed March 28th, 1947, in the Circuit Court of Greene County, Missouri, Division No. 2. The cause was tried and decree of divorce awarded plaintiff, together with alimony in gross in the sum of $4,000.00 and $150.00 additional attorney fee. From this judgment defendant appeals to this court.
Plaintiff's cause of action was based upon general indignities. The amended petition alleged that several years prior to their final separation, defendant began to grow cold and distant toward plaintiff and ceased to show proper love and affection toward her; that defendant was abusive toward plaintiff, cursed her and called her vile and offensive names; that defendant failed to provide support for plaintiff and told her that he didn't care to live with her longer; that on numerous occasions he fussed and quarreled with plaintiff; that defendant was possessed of an ungovernable temper and constantly nagged and quarreled at plaintiff, criticised her, and in fits of anger, on numerous occasions struck and assaulted her and even threatened her life; that he drank alcoholic liquors excessively and, that because of such indignities, she found it impossible to live with defendant. Plaintiff pleaded that defendant was possessed of considerable property and earned a good salary and prayed for divorce and alimony and that her maiden name be restored to her, together with a reasonable attorney's fee.
In defendant's answer he admitted the marriage, to-wit: on the 5th day of October, 1924, but denies the date of separation. Defendant denied that plaintiff faithfully demeaned herself as his wife and denied that she treated him with kindness and affection and further denied that he subjected plaintiff to such indignities which rendered her condition as his wife intolerable. Defendant denied generally all of the allegations of indignities alleged in plaintiff's petitions and prayed that the petition be dismissed.
The sole question presented to the court is whether the evidence is sufficient to justify the lower court's judgment that plaintiff was the innocent and injured party so as to entitle her to a divorce under the law.
The court of appeals, in reviewing a divorce case, has a duty to examine the evidence and reach its own conclusions, but has a duty, especially where there is irreconcilable conflict in the evidence, to defer largely to the finding of the trial judge. Callahan v. Callahan, Mo.App., 192 S.W.2d 48. In Rusche v. Rusche, Mo.App., 200 S.W.2d 577, 580, the court stated the rule as follows:
Fite v. Fite, Mo.App., 196 S.W.2d 65, Culp v. Culp, Mo.App., 164 S.W.2d 623, 626. Quoting from the latter opinion, 164 S.W. 2d at page 626, the court stated: "* * * in any event this case is one wherein much deference should be given to the findings of the trial judge, who had the witnesses before him and heard their testimony, and observed their conduct and demeanor on the witness stand, and was in a much better position to determine the truth or falsity of their testimony than are we, who have only the printed record before us."
The facts in this case show that the parties were married October 5th, 1924, and lived on a farm in Dade County, Missouri, which they acquired about 1928. The testimony showed that they paid for this farm $5,500.00. There is some conflict as to the manner of payment but plaintiff testified that her father furnished $2,500.00 of the money and that they gave a mortgage for $3,000.00. Defendant testified that they got a $1,000.00 from plaintiff's father and he later furnished enough to make it $2,000.00. We think the testimony justified the court in finding plaintiff stated the facts as to the amount her father furnished, to-wit: $2,500.00. The testimony showed that the mortgage was finally paid off out of the earnings of the defendant, while working in the oil fields as a welder some time in the '30s. Plaintiff testified that the farm at the present time was surely worth $8,000.00. The testimony showed that the parties lived in Missouri about ten years after their marriage and that, in 1941, they moved to Louisiana where her husband worked in the oil fields as a welder. This was brought about, according to the testimony, because they were about to lose their farm and had to make this change to save it. The testimony showed that the plaintiff lived with the defendant while he was in the southern states working until 1940, when she came back to Missouri to the farm.
Now plaintiff admitted in her testimony that in 1924, or about then, she had illicit sexual relations with some four men. Defendant testified that it was eight men. Plaintiff testified that the defendant found out about her relationship with other men while they were down south and that after their trouble she came home and never visited him any more. Plaintiff testified that in 1940 her mother came to Texas to visit them and that her husband ran her mother off the night she arrived and told plaintiff to go with her and that when plaintiff packed to go he cried and begged her to stay and that she stayed; that her mother went back home alone. She testified that in a few days she returned to Missouri with her daughter, Doris, to send her to school and that she and her daughter lived with her mother for about six weeks and then she and her daughter moved to the farm in Dade County, Missouri, where they lived until their daughter was married in 1946, and then she moved to Springfield, Missouri.
Plaintiff testified that their troubles started while they lived in Missouri. This question was asked plaintiff:
Plaintiff testified that this abuse occurred often before they left for Louisiana in 1934; that thereafter, a part of the time they got along alright and part of the time they didn't. She testified that defendant threatened her, even threatened to kill her. These questions were asked and answers given:
Plaintiff testified that this caused her great worry and that the defendant was very serious about threatening her. The following question was asked plaintiff about coming back to Missouri:
Plaintiff testified that after her return to Missouri in 1940, her husband had his leg broken and came home for two months and that during that time they lived together as man and wife; that they stayed out on the farm together. Plaintiff testified that while defendant was in their home in 1946 he became angry about her going to town and gave her a cussing. This question was asked her:
She testified that he came back to their home about two weeks later and gave her a real good one. This question was asked:
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