Price v. Price, s. 7643

• Decision Date: 04 March 1958
• Docket Number: 7640,Nos. 7643,s. 7643
• Citation: 311 S.W.2d 341
• Parties: James Eugene PRICE, Plaintiff-Appellant, v. Mary Elizabeth PRICE, Defendant-Respondent. James Eugene PRICE, Respondent-Plaintiff, v. Mary Elizabeth PRICE, Appellant-Defendant.
• Court: Missouri Court of Appeals

Page 341

311 S.W.2d 341

James Eugene PRICE, Plaintiff-Appellant, v. Mary Elizabeth PRICE, Defendant-Respondent.

James Eugene PRICE, Respondent-Plaintiff, v. Mary Elizabeth PRICE, Appellant-Defendant.

Nos. 7643, 7640.

Springfield Court of Appeals, Missouri.

March 4, 1958.

Douglas W. Greene, Springfield, for James Eugene Price.

Charles M. Wantuck, Springfield, for Mary Elizabeth Price.

McDOWELL, Judge.

The appeals in the above numbered cases are from a judgment of the Circuit Court of Greene County, Missouri, denying a divorce to plaintiff on his petition and to defendant on her cross-bill.

On January 9, 1957, James Eugene Price filed a petition for divorce against his wife, Mary Elizabeth Price, in the Circuit Court of Greene County, alleging plaintiff and defendant were married March 3, 1949 and separated July 31, 1956. As grounds for divorce the petition stated: That defendant became cold and indifferent to the plaintiff, quarrelsome, and lost all love and affection for plaintiff and children and that she lived beyond his means and was extravagant.

It alleged that three children were born to his marriage, Douglas Wesley, age six years, Cynthia Ellen, age 5 years, and Gregory Eugene, age 16 months.

The prayer was for divorce and custody of the children.

The defendant's answer was a general denial and cross-bill for divorce.

In the cross-bill defendant alleged: That plaintiff was cold and indifferent toward her; that he was extremely jealous, without provocation or just cause; that he was fault-finding and quarrelsome with her; that he refused to take her out socially; that he told her he wanted her parents, instead of him, to support her and that he lost all interest in the home and seemingly lost all love and affection for the defendant.

The prayer was for divorce, care and custody of the children, monthly support as alimony and child support and attorney fees.

The cause was tried March 25, 1957 and judgment rendered for the defendant on plaintiff's petition and for plaintiff on the defendant's cross-bill. From this judgment both plaintiff and defendant appeal.

These appeals are consolidated for opinion. Plaintiff's appeal is Case No. 7643 and defendant's appeal is Case No. 7640.

In the trial court's memorandum, he made this statement:

'* * * Here we have a case of two young married people where there has not been one word raised about their morals; that they are not good citizens, and people of high class morals.

'Now, the second peculiar thing about this case is, that here is the husband, whose principal complaints are about his wife in a period of time in which she was in a psychiatric ward of St. John's Hospital, and then out, then back in, and then at Nevada as a voluntary mental patient. And he evidently thought she was mentally disturbed, because he filed a complaint in the Probate Court asking her to be adjudged incompetent so that she could be confined in Nevada, probably, because, evidently, he thought she should be there longer to be treated.'

The gist of plaintiff's evidence is that he and defendant were married March 3, 1949; and that although he alleges in the petition they were separated July 31, 1956, there is no record evidence showing the circumstances of separation.

That except for two years, from 1949 to 1951, the parties made their home in Springfield. Plaintiff is employed by the Frisco Railroad, as secretary, at a salary of $425 per month, take home pay $390. Defendant was a trained nurse and for some two years, from 1951, she worked in St. John's Hospital. Plaintiff testified that while his wife was working she made the statement to him that 'she had no intention as winding up a mother and a matron, and that she was professional and she was not going to be the mother of a bunch of kids'. There was born to this marriage, three children, Douglas Wesley, age 6, Cynthia Ellen, age 5, and Gregory Eugene, age 16 months. At present the baby is in custody of plaintiff's sister and the two older children are with plaintiff, cared for by a housekeeper; that the children are in a good home and well cared for.

As to the first indignity alleged, to-wit, that defendant was cold and indifferent to the plaintiff, he testified: that during the entire married life, for periods at a time, defendant refused him privileges as a husband and this condition grew generally worse until just prior to the separation when she completely refused him such relation. He stated defendant said she no longer loved him or the children and that she was through.

As to defendant's extravagance, witness stated that defendant seemed to have no conception of finances during their married life; that he talked to her about finances and she stated she believed in bettering one's self. That on one occasion she purchased a set of child craft books, which was beyond their ability to pay and he talked the agent into taking them back.

On cross-examination of defendant, there was some evidence that she purchased a garbage disposal and dishwasher for the house. It was admitted these purchases were made while defendant was working at the hospital or shortly thereafter.

Plaintiff offered no evidence as to the defendant being quarrelsome.

The principal complaint seems to be as to defendant's treatment of the children. Plaintiff testified that she said 'she did not love the children'; that they were just 'little animals' or 'brats'; that when he came home from work defendant would be in the house with the baby and the two older children would be gone and she would not know where they were; that he found them out on the street, sometimes a block or two blocks from home. He stated on one occasion he came home, the baby was alone, needed changing, and that he finally found defendant in a field cutting weeds.

Plaintiff testified that the treatment of the children complained of was limited to a period between June 22nd to August 20th. He said during this time, except at breakfast, defendant only prepared sandwiches for the family to eat; that she said she was on a diet and the family would have to be on a diet likewise; that it was during this time defendant called the children 'little animals' and 'brats'. He said she had an aversion for pens and put the baby's pen in the closet, permitting the baby to crawl all over the house; that he broke a lamp, crawled through the glass and cut his knees; that on one occasion she picked the baby up and held it out by one arm and one leg and said slowly, 'This child is too sweet to be alive'.

He testified that he and defendant would be sitting in the living room watching television and suddenly she would slap one of the children, without provocation, and, at one time, slapped him; that one time when they were returning home about 9:00 p. m she, without provocation, backhanded Cynthia and knocked her down and across the room; that in the latter part of July or first of August, 1956, while they were visiting in his mother's home, defendant picked up the baby, threw him over her shoulder and had plaintiff not caught the child, he would have gone through a glass bookcase. This incident was corroborated by his mother. Plaintiff stated that during this period he had to cook for the children, get up at night and care for them, etc.

He testified the children were permitted to play with matches and defendant thought it very funny; that Douglas ran through bonfires. He stated she finally agreed to cooperate with him in preventing the use of matches.

Plaintiff and his mother testified that the baby was allowed to crawl on the floor and chew on light and television cords. He said defendant made the statement, 'If it kills him, it will kill him'; that the children were permitted to roam about the streets. There was some testimony that when the children were received by plaintiff, they were emotionally disturbed; that the little boy would cry, stamp his feet and have tantrums but that now they were happy and contented.

Plaintiff's mother testified that the maternal grandparents had the two older children for a while and that the grandmother called her, by phone, and said she was unable to control them.

Plaintiff offered evidence as to his good reputation and as to his good treatment of his wife. There seems to be no dispute as to the good reputation of plaintiff for morality.

Plaintiff's testimony showed that he lived in a rented house and paid $50 per month rent; that he employed a housekeeper to care for the two older children and paid her $60 a month; that he and defendant owned a home that cost $10,000 on which there was a mortgage of $9,200. We think it unnecessary to set out all the other items of property owned by plaintiff as the evidence is undisputed that his indebtedness exceeds the value of his property. He still has unpaid doctor bills incurred in treating the defendant.

Defendant testified that she is now 30 years of age; that she and plaintiff were married March 3, 1949, and lived together until about September 26, 1956. She said she was in the hospital the last of July; that actually there was no formal separation; that she treated her husband the best she knew how, but he was cold and indifferent toward her. She said plaintiff worked from 8:00 a. m. until 5:00 p. m., and worked at night an awful lot; that he was jealous with everyone who made friends with her, even jealous of her parents and talked about his own parents after they had visited them; that he was critical of both sets of grandparents. She testified that plaintiff thought she should be able to watch the children every minute of the time, and made her feel uncomfortable in the home in that she should always have them in her eyesight. She said she could not do anything to please him; that during their married life the only social life she had was visiting her relatives; that plaintiff very seldom took her to places for entertainment. She testified that while she was in the hospital he told her he wanted...