Paxton v. Paxton

• Decision Date: 01 December 1958
• Docket Number: Nos. 22818 and 22861,s. 22818 and 22861
• Citation: 319 S.W.2d 280
• Parties: Frank PAXTON, Jr., Respondent, v. Josephine PAXTON, Appellant.
• Court: Missouri Court of Appeals

Page 280

319 S.W.2d 280

Frank PAXTON, Jr., Respondent, v. Josephine PAXTON, Appellant.

Nos. 22818 and 22861.

Kansas City Court of Appeals, Missouri.

Dec. 1, 1958.

John B. Ewing, Jr., Kansas City, Brenner, Van Valkenburgh & Wimmell, Kansas City, for appellant.

Albert Thomson, Harold T. VanDyke, Kansas City, Davis, Thomson, VanDyke & Fairchild, Kansas City, of counsel, for respondent.

MAUGHMER, Commissioner.

This is a divorce case. Many of the fields of conflict and controversy, including requested remedies and relief, always existing in domestic disputes, but which are oftentimes safely secluded out of court, were here brought into the active arena and fought for in the forums of both the trial and the appellate courts.

On April 23, 1957, plaintiff--husband and father--filed his petition for absolute divorce. He charged gross indignities and adultery. Defendant--wife and mother--countered with a general denial, cross-charged indignities on his part and prayed for a decree of separate maintenance. Each sought full custody of the four children. The trial court found the issues for the husband and against the wife. It decreed absolute divorce to the plaintiff and awarded him full custody of the four children with the mother having 'reasonable right of visitation' and custody from 9:00 a. m. to 9:00 p. m. each Sunday.

In this state an action for divorce is a statutory suit at law, yet it does, nevertheless, partake in the nature of a suit in equity and is triable as such by the circuit court and de novo as such on appeal, Clark v. Clark, Mo.App., 306 S.W.2d 641, loc. cit. 646. It is, therefore, the rule for appellate consideration that the court review the evidence afresh and redetermine the ultimate issues in the light of that examination as it sees and understands those issues, but always according deference to the honorable trial judge as to the weight of the evidence and especially as to credibility of the witnesses. We do this not because keener insight or superior wisdom is assumed to rest in the brain and bosom of the trial chancellor, but rather because that judge saw and heard and observed the witnesses, while we must depend upon the less revealing written record of their testimony. That such rule is the law is, we think, so generally understood and has in so many opinions had a compilation of cases cited in its support as to not require its being done again in this opinion, which will from other requirements be necessarily rather long.

On this appeal defendant presents two assignments of error: First, that it was error to grant the divorce to plaintiff because the evidence shows that he is not, as a matter of law, an injured and innocent party and, Second, that the court erred in awarding custody of the four children to plaintiff because such is not to the best interest and welfare of the children. Although these assignments number only two, determination thereof involves complete examination of the 908 page transcript filed in this case.

On the first point defendant, although denying her guilt, does not assign as error the finding of the trial court that she was guilty of such wrongdoing as entitled plaintiff to a divorce. It is rather her position that plaintiff's conduct and behavior was such as to bar any justifiable conclusion that he is the injured and innocent party and, therefore, he is not entitled to a decree of divorce, Section 452.010, V.A.M.S.

Both parties had been reared in Kansas City and were there married on April 15, 1942, and while Mr. Paxton was in active military service. Previously Mr. Paxton had attended the University of Washington for a period and V.M.I. for one year. Mrs. Paxton had been a student at The Barstow School for Girls, at Randolph-Macon Women's College, Lynchburg, Virginia, and at the University of Kansas City. She has a B.S. degree in education. For three months immediately following their marriage, this couple resided in Brownwood, Texas. Then came a transfer to Fort Benning, Georgia, where they lived for one and a half years, and where, on July 15, 1943, their first child, Rebecca, was born. Mrs. Paxton says her husband expressed his belief that their home and finances at that time were not adequate for rearing a family, and that they should wait until later. Mrs. Paxton was ill, run down and thin after this first childbirth. She says her husband would not help with the child care, was away from home much of the time and displayed a violent temper if the baby cried, if the meals were not ready exactly on time, or if the household money ran out too quickly. Lt. Paxton was then ordered to Louisiana. His wife remained for some weeks in Kansas City, and then joined her husband in Louisiana where, because of housing shortage, they occupied a 'one room shack'. The next stop was Camp Pickett, Virginia, and here Mrs. Paxton attended school for three months. This enabled her to complete the requirements for her bachelor's degree. While in Virginia, the family had part-time maid service and Mrs. Paxton's mother came for an extended stay. Then the family moved to Fort Knox, Kentucky, where the wife became pregnant for the second time. She testified that her husband's indifference and neglect continued, that he refused to help her around the house, or with the child and always refused to carry the baby, saying it was undignified for an officer to do so. Their final military location was Carmel, California, near Fort Ord. It was here, according to Mrs. Paxton's testimony, that her husband first began to tell her about his associations with other women of various types. In California it was girls, whom he and other officers picked up in bars and took to hotel rooms. Her testimony covering the period from this time on until their separation in April, 1957, contained reports of similar incidents which she says her husband told her about. There was an office girl and 'semi-pro' girls in Las Vegas, lots of girls in New Orleans, girls in a questionable place in Havana, Cuba, and one woman in Kansas City, who was identified by name. Mr. Paxton denied any improper conduct on these occasions and the charges were not substantiated by any other witnesses. During the latter part of his military service, Mrs. Paxton said that in addition to neglect and indifference, her husband became abusive--cursed her and upon occasions struck her--but during all of this period and even during the later years she said that she loved her husband, while Mr. Paxton on his part asserted that until the last year or so, his wife was 'a good wife'.

Next came the transposition from military to civilian life. Plaintiff's father was owner of the Frank Paxton Lumber Company of Kansas City, which owns and operates lumber yards in Kansas City, Chicago, Fort Worth, Denver, Albuquerque and Des Moines. The plaintiff, Frank Paxton, Jr., upon his separation from the armed forces became associated with this enterprise and his first assignment was at Des Moines. As the beginning, his salary was about $300 monthly, but was quickly increased to $500. After a brief apprenticeship in Des Moines, plaintiff went to Chicago as a company representative. In 1951, Mr. Frank Paxton, Sr., died and plaintiff was named president of the company. His salary at the time of the trial was $35,000 per year. He owned some 31,000 shares of stock on which, in 1956, annual dividends in excess of $13,000 were paid. In addition, the company paid not only his traveling expenses and some club memberships and dues, but on one occasion bought him a Cadillac convertible.

Mrs. Paxton testified that her husband's neglect, indifference and abuse continued while the family was domiciled in Des Moines, Chicago and in Kansas City. During all of their married life the husband has been absent from home much of the time and Las Vegas was one of his frequent ports of call. He says these absences were business trips, necessary to the supervision of the company's lumber yards, and that for an extended period when the company was being reorganized in 1951, he worked late--after midnight--in the local offices. Defendant questions if any man works day and night, regularly, and points out that no company lumber yard is located at Las Vegas.

Soon after the parties moved to Hinsdale, Illinois, in the Chicago area, the husband returned from one of his trips late at night and found his wife and two children absent. He said he carefully searched the house, looking for a note or indication as to where they might have gone. He found a box of letters from one Mr. Eib, a Des Moines resident and a mutual friend of the Paxtons, indicating that an intimate relationship existed between his wife and Mr. Eib. His wife and children returned the next day. They had been in Des Moines, and he questioned her about the whole matter. Mrs. Paxton told him she wanted to talk with Eib and two days later told him that it had been a mistake, that she was sorry and wanted to be a good wife. He said he forgave her and they resumed their marital life. This incident was neither denied nor disputed.

We now come to the last few years of this couple's married life. In the meantime two more children had been born, making a total of four, namely, Rebecca, now age 15 years; Marjorie, 13 years; Frank, III, 8 years, and James, age 5 years. Mr. Paxton continued to be away from home on frequent and extended trips. Early in 1955, he came home from Albuquerque one night after midnight. His wife was not at home. She arrived about 3:00 a. m., driving up in her car ahead of a white station wagon in which there was a man who waved good night to her and drove off. She told her husband that this man was a close friend, that it was an innocent affair and assured him that 'it is perfectly all right', but refused to state the name of this person. On Sunday, July 1, 1956, Mr. Paxton was in the State of Oregon. He called his wife by long distance telephone about 6:00 a. m. She was not at home. In...