R--- v. M---, s. 8271

• Decision Date: 13 November 1964
• Docket Number: 8273,Nos. 8271,s. 8271
• Citation: 383 S.W.2d 894
• Parties: R_____, Plaintiff, Appellant-Respondent, v. M_____, Defendant, Appellant-Respondent.
• Court: Missouri Court of Appeals

Page 894

383 S.W.2d 894

R_____, Plaintiff, Appellant-Respondent, v. M_____, Defendant, Appellant-Respondent.

Nos. 8271, 8273.

Springfield Court of Appeals, Missouri.

Nov. 13, 1964.

Veryl L. Riddle, Riddle, O'Herin & Newberry, Malden, for plaintiff, appellant-respondent.

Charles M. Cable, John W. Noble, Bradley & Noble, Kennett, for defendant, appellant-respondent.

HOGAN, Judge.

This is a divorce action. The husband is the plaintiff; the wife is the defendant. The plaintiff filed suit for divorce, stating as his grounds that the defendant had committed adultery and had offered him certain intolerable indignities. The defendant countered with a cross bill for separate maintenance, alleging that the plaintiff openly consorted with other women during their marriage, and charging certain other indignities. Both parties sought custody of their minor children. The trial court has denied a divorce to either party and both have appealed. The two appeals were consolidated in this court.

The plaintiff, at trial time, was 63 years old. He is a funeral director, though not a licensed embalmer, and is the principal officer and director of a corporation which operates funeral homes at Campbell and Malden, Missouri, with sub-offices in other locations. The record indicates that he has been engaged in this business for many years. He is assisted in the operation of this business by Mrs. B., to whom he was formerly married. Mrs. B. is a licensed embalmer, and her duties include 'keep[ing] the books,' and 'she sees about the funerals and gets records.' Mrs. B. is a substantial shareholder in the corporation which operates the funeral business, and the record indicates that during all the time here in question she has been closely associated with the plaintiff in the operation of his business.

In 1945, after the plaintiff and Mrs. B. were divorced, he and the defendant were married. The parties are the parents of three children, a son aged 17, and two daughters, one 16 and the other 12. We infer that all of these children were born before the parties finally separated in 1951. These children now live with their mother. The parties, as we say, have been separated since 1951, and during all this time the defendant and the children have lived in what is best described as an annex to the funeral home--'built under the same roof * * * but different entrances'--while the plaintiff has continued to live in the adjoining funeral home. The apartment, or annex, in which the defendant and her children reside, consists of a living room, one bedroom, a kitchen and a bathroom. The children sleep in the bedroom, which is partitioned by the use of dressers, while the defendant sleeps in the living room where she 'makes out a folding couch' each night. The record indicates that though the plaintiff contributes substantially to the children's support, he otherwise has little contact with them. The plaintiff's position is that the defendant has deliberately alienated the children from him, while the defendant maintains that the plaintiff 'just treats them like they were strangers' and 'doesn't even recognize them.' Thus, whatever the basic source of their difficulties, the parties appear to have lived for the past thirteen years in an atmosphere of considerable hostility at relatively close quarters, substantially without change since their final separation.

The parties in this instance presented evidence of a number of episodes, through which there run, so to speak, a number of recurrent themes. Each expressly accused the other of adultery, and each presented evidence which we must in fairness say tends to support the accusation. The plaintiff's evidence was that the defendant had openly consorted with a number of men, and one of these men, an automobile mechanic, testified that he had seen or been with the defendant 'every week or something like that' for a period of 'maybe a year.' Sometimes this man would be alone with the defendant, and 'sometimes the children were with us.' This witness positively testified to having sexual intercourse with the defendant on several occasions. Testimony given by the witness' former wife tended to corroborate his evidence.

Another man, who appears to have been an appliance dealer in a nearby city, was also shown to have associated with the defendant in a rather intimate and imprudent fashion, though there is no positive testimony that the defendant ever actually committed adultery with him. The plaintiff's evidence with regard to this man was that his car was seen parked near the defendant's quarters on numerous occasions, and that the defendant had referred to him as her 'boy friend.' A former police officer testified that on one occasion he saw the appliance dealer go toward the defendant's apartment about 10:00 P.M. and leave about 1:45 A.M., during which time no lights were visible in the defendant's house. Presumably the children were in the house at the time. The defendant categorically denied any improper association with either man.

On the other side of the scale, there is evidence that the plaintiff himself had, on at least one occasion, been guilty of adultery. Though we are inclined, on this particular point, to accept her testimony with some reserve, the defendant stated that during their marriage the plaintiff lived with his former wife 'just like he had two wives under the same roof,' and further related an incident, which occurred while the plaintiff was in the hospital, when a woman, unknown to the defendant, 'walked in and commenced to kissing him [plaintiff] and hugging him and making over him like she was his wife.' More substantial, though the plaintiff makes vigorous efforts to avoid its effect, is the testimony of the parties' son, who stated that he had seen his father associating with other women, 'walking along the street and eating at the restaurant, talking and driving around together,' and that on one occasion, while he was working near his father's sleeping quarters, he overheard his father making love to a young waitress from a local cafe, and that at the time 'he [the plaintiff] was having sexual intercourse with her.' The plaintiff flatly denied these incidents or any improper association with other women.

It is apparent that the presence of Mrs. B. has produced discord between the parties. Again and again some mention of the hostile feeling between the defendant and the plaintiff's former wife appears. The plaintiff's view is that Mrs. B. has been a trusted and necessary employee; she appears to be in charge of one of the funeral homes in which the plaintiff is interested, and she is a substantial shareholder in the corporation which owns and operates the funeral homes. Exhibits introduced at the trial make it appear that at one time or another she has either invested or loaned a considerable amount of money to the corporation, and the corporation is now indebted to her. The defendant, on the other hand, understandably regards Mrs. B. as a rank and most unwelcome intruder. Indeed, a substantial part of the parties' immediate difficulty seems to have sprung from the fact that the plaintiff, by incorporating his assets and by agreeing that his corporate shares shall be transferred to the other shareholders for cash upon his decease--the record indicates that he has been seriously ill--has effectively put his assets into Mrs. B.'s hands and out of reach of defendant and her children. In this respect, we agree that she may have some cause for concern.

On at least one occasion, the defendant and Mrs. B. have openly fought. The plaintiff's version of this incident is that the defendant made a wholly unprovoked assault on Mrs. B., and in the process not only injured Mrs. B. but called her an 'old whore and son-of-a-bitch.' The defendant maintains that the altercation was wholly provoked by Mrs. B.

Each party has accused the other of physical abuse, in some degree. The defendant testified that on several occasions the plaintiff had assaulted her without provocation. At one time, the defendant said, after she and Mrs. B. had engaged in some kind of argument, or had had some difference which angered Mrs. B. and Mrs. B. threatened to leave, 'he [plaintiff] put his hands around my throat and hit my head against the wall and he said 'I'll kill you for running my embalmer off.'' On another occasion, while the children were small, the plaintiff attacked the defendant after she had remonstrated with him because of his neglect of the children, and 'threw me down on a trunk and give me a good beating.' Once while the defendant was burning trash the plaintiff, having become angered over some mater, attempted to run the defendant down with a truck or an automobile, and the defendant testified that on one occasion the plaintiff had pointed a pistol at her and had threatened to kill her. The plaintiff has positively denied mistreating his wife. His testimony on this subject was that he 'never touched her. I never beat her up.' On one occasion, the plaintiff testified, the defendant threatened to break all the glass out of one of his funeral coaches, and because of the ensuing altercation he 'paid a fine,' but did so only 'to satisfy her [defendant].'

Repeated reference is made to the plaintiff's indifference to the children. The plaintiff himself testified that the children 'don't even recognize me.' Being asked why the children 'have not been friendly * * * for the past few years,' the plaintiff answered, 'they do whatever she [defendant] tells them.' While there is no question, as we have said, that the plaintiff has contributed substantially to the children's support, the children themselves apparently consider that he is indifferent to them, for the parties' son and their older daughter testified that he seldom speaks to them, and they obviously have the impression that he considers them inferior and not worthwhile. The plaintiff concedes that the defendant alone has reared...