Ramos v. Ramos

• Decision Date: 18 July 1950
• Docket Number: No. 27888,27888
• Citation: 232 S.W.2d 188
• Parties: RAMOS v. RAMOS.
• Court: Missouri Court of Appeals

Page 188

232 S.W.2d 188

RAMOS v. RAMOS.

No. 27888.

St. Louis Court of Appeals, Missouri.

July 18, 1950.

A. G. Jannopoulo, St. Louis, for appellant.

Joseph N. Hassett, Ernest E. Baker, and Thos. J. Boland, all of St. Louis, for respondent.

McCULLEN, Judge.

This is an action for divorce. It was brought by appellant as plaintiff on July 2, 1948. The trial was begun on March 24, 1949, and concluded on April 28, 1949. On July 25, 1949, the court entered a judgment against plaintiff denying and dismissing his petition and entered judgment for defendant on her cross-bill, granting her an absolute divorce and custody of the minor child. The court also ordered that plaintiff have the privilege of visiting with said minor child every Thursday from 2 P.M. to 3 P.M. at the home of the defendant until further order of the court, and that the costs of the proceedings be paid by plaintiff. Thereafter plaintiff filed a motion for a new trial which was overruled and plaintiff duly appealed.

Plaintiff alleged in his amended petition that he and the defendant were married on August 4, 1947, and separated June 23, 1948; that he faithfully demeaned himself and at all times discharged his duties as the husband of defendant and treated her with kindness and affection; that defendant disregarded her duties as his wife and offered him such indignities as to render his condition in life as her husband intolerable. Plaintiff set forth in his petition twelve different charges of indignities against defendant.

Plaintiff further alleged that a child was born of the marriage, namely, Michael, a boy 3 years old; that plaintiff is a resident of the City of St. Louis, Missouri, and has resided in said city for more than one whole year next before the filing of the petition. He prayed for an absolute divorce and custody of the child.

Defendant's amended answer admitted the marriage, the birth of the child and the separation as alleged in plaintiff's amended petition, but specifically denied all of the indignities alleged by plaintiff. Defendant filed an amended cross-bill in which she alleged that at all times since the marriage she faithfully demeaned herself and discharged her duties as the wife of plaintiff and at all times treated him with kindness and affection, but that plaintiff offered her such indignities as to render her condition in life as his wife intolerable. Defendant alleged specifically a number of such indignities.

On August 8, 1948, plaintiff filed a motion in which he referred to the allegations of his petition charging that defendant was not mentally capable of properly caring for, educating or instructing their infant child. In said motion plaintiff stated a number of incidents of conduct on the part of defendant which plaintiff alleged showed defendant's mental deficiency and requested that a mental examination of defendant be made in order that the court be fully and properly informed regarding the custody of the minor child and charging that the future welfare and well-being of the child is in jeopardy while in the custody and control of defendant because of her mental condition. No specific action was taken by the court on the above motion.

Plaintiff also filed a motion asking for custody of the minor child pendente lite in which he alleged misconduct on the part of defendant in relation to the care of the child, charging that the well-being of the child is in jeopardy while in the custody and control of defendant because of her mental condition. On January 31, 1949, the parties filed a stipulation agreeing that all motions theretofore filed by plaintiff be presented at the time of the trial of the cause and that all evidence in connection with said motions be offered and heard simultaneously at the trial of the divorce action.

It appears from the testimony that plaintiff and defendant were married at Warrenton, Missouri, on August 4, 1947. Plaintiff was then 42 years of age and defendant 28 years of age. Plaintiff had been married before and divorced. He had two children, a boy 17 years of age and a girl 14 years. Defendant's marriage to plaintiff was her first marriage. Plaintiff is a native of Puerto Rico and a graduate of Yale University Medical School. He practices his profession as a medical doctor and surgeon in St. Louis, Missouri, and has had experience in the treatment of mental cases. It appears that plaintiff and defendant both lived at the Saum Hotel in St. Louis before they went together and kept company for about one year before their marriage. After the marriage plaintiff moved into defendant's apartment at said hotel, and that they lived there from August 4, to September 2, 1947, when plaintiff went to Mount St. Rose Sanatorium for an operation for tuberculosis. He had asked defendant prior to the marriage to postpone the marriage until after the operation. She refused to postpone the marriage and told him she would go through with it just the same. On September 2, 1947, plaintiff entered the sanatorium, underwent the operation, and remained there until November 30, 1947.

Plaintiff testified that defendant did not visit him regularly when he was in the hospital; that soon after the operation, or about a little more than a month after the marriage, on one of her visits to the hospital, she brought him a loaded 45 caliber pistol and a bottle of whiskey without giving him any explanation of her act in doing so; that during the time that he lived with defendant he treated her with kindness and courtesy, but she treated him coldly and indifferently; that on an average he returned to his home about 10 P.M. each evening because he had office hours that lasted until about 9:30 P.M.; that he took defendant to places of amusement almost every evening during August 1947, and also from December 1 to 17, after he returned from the hospital although he was still ill; that he took plaintiff on a trip to Puerto Rico and upon his return she refused to go out with him; that on several occasions he invited defendant to go out to dinner with him, but she always refused; that he was not introduced to any of her friends and does not know any of them; that defendant told him she did not love him; that she hated him and was going to get a divorce; that she refused to cook his meals or do the housework and that he had to eat his meals in a restaurant because they never were prepared for him at home; that defendant maintained a dirty and untidy home; that they had roaches and bugs until he used D.D.T. poison which helped the condition.

Plaintiff further testified that defendant's Aunt Adda Ohmeyer interfered in their affairs and was one of the causes of the separation and divorce; that Aunt Adda sent defendant to an obstetrician without consulting plaintiff and told defendant that if plaintiff was any kind of a man he would have returned home in time for the birth of the child. Plaintiff stated that at the time of the birth of their child he was ill in Puerto Rico, although he was up and around for a few hours each day; that Aunt Adda told defendant that if plaintiff did not sign an antenuptial agreement (which plaintiff did sign) he was marrying defendant for her money and did not love her; that Aunt Adda made herself a trustee under the antenuptial trust agreement of defendant's fortune; that the trust was created before the antenuptial agreement was executed; that Aunt Adda further advised defendant to divorce plaintiff and had so advised her before there had been any quarrel between plaintiff and defendant; that defendant told plaintiff on one occasion that her Aunt Adda said that if defendant made a nuisance of herself by not cooking and not taking care of plaintiff's clothes and by not answering his phone for professional calls and appointments, plaintiff, being a sick man, would leave her and her child and would thereby give defendant grounds for divorce; that defendant left their home for long periods of time during the day and night and would return home about 11 P.M. without explaining where she had been although plaintiff would inquire; that every Friday night defendant would regularly be away from home and plaintiff did not know where she was; that during the latter part of June 1948, immediately prior to the separation, defendant locked plaintiff out of their home and changed the locks on the door and refused to allow him to enter; that on many occasions defendant asked him to leave her; that defendant never did any housework or work in their home. Plaintiff stated that he never did strike defendant and never did twist her arm, but that she called him a 'quack' and slapped him on two different occasions and threw a pan of water striking him on the forehead; that at that time he threw water on defendant first, and after she threw the pan of water on him she left home and stayed away all night but did not take the baby with her. Plaintiff stated that he threw the glass of water on defendant because she was hysterical and in a tantrum about 12:30 at night; that she told him very loudly to get himself a girl friend and she would get herself a boyfriend. Plaintiff stated that throwing water on a person having a tantrum is recognized by the medical profession as a means of bringing the person out of such a condition. Plaintiff admitted that he found fault with defendant for neglecting their baby and for not cleaning the baby's bottles and stated that the baby became ill as a result of the defendant's neglect. Plaintiff stated that he wanted the child baptized in some Christian faith but defendant objected and stated she did not want the child baptized until it grew up and became old enough to pick its own religion.

Plaintiff further testified that defendant is not mentally capable of properly caring for or raising their minor child; that she did not change the baby's diapers when they were wet or soiled, or even when the baby cried to be changed; that she did not feed the baby according to the...