Reeves v. Reeves

• Decision Date: 07 February 1966
• Docket Number: No. 8475,8475
• Citation: 399 S.W.2d 641
• Parties: Doris REEVES, Plaintiff-Respondent, v. Arthur REEVES, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 641

399 S.W.2d 641

Doris REEVES, Plaintiff-Respondent, v. Arthur REEVES, Defendant-Appellant.

No. 8475.

Springfield Court of Appeals, Missouri.

Feb. 7, 1966.

Wangelin & Friedewald, Poplar Bluff, for defendant-appellant.

Bloodworth & Bloodworth, Poplar Bluff, for plaintiff-respondent.

STONE, Presiding Judge.

On November 25, 1964, almost eighteen years after her marriage to defendant Arthur Reeves on December 25, 1946, plaintiff Doris Reeves instituted this action for divorce by the filing of her petition in which she sought dissolution of the marital relationship on the ground of indignities [V.A.M.S. Sec. 452.010], asked for the custody of Patricia Ann, then fifteen years of age, one of the two children born of the marriage, and prayed for alimony, child support, attorneys' fees and costs. On December 15, 1964, defendant filed his answer and cross-bill in which he sought a decree of divorce for alleged indignities and prayed for custody of both children, namely, Particia Ann and Michael Eric, then seventeen years of age. Following trial on February 9 and 16, 1965, the court entered a decree dismissing defendant's cross-bill, granting a divorce to plaintiff on her petition, awarding custody of Patricia Ann to plaintiff and custody of Michael Eric to defendant (with each parent to have the right of reasonable visitation with the child whose custody was awarded to the other parent), and adjudging that defendant should pay to plaintiff the sum of $2,500 as alimony in gross, the additional sum of $1 on the first day of March each year as permanent alimony, and $75 per month for the support of Patricla Ann. On this appeal by defendant, he complains that plaintiff's petition should have been dismissed and he should have been granted a divorce on his cross-bill and that, in any event, the trial court erred in entering judgment against him for $2,500 as alimony in gross.

Defendant came to Poplar Bluff in September 1961 as associate sales manager in that area for a life insurance company, and he moved his family from Flat River to Poplar Bluff in February 1962. The transcript on appeal discloses nothing pertaining to the prior course of the marital venture, excepting only that plaintiff and defendant had acquired title, as tenants by the entirety, to two properties in Flat River, namely, (1) their six-room home and (2) an adjoining property to which plaintiff referred as a 'small brick building' worth $1,500 and defendant's attorney referred as 'a house and lot' not valued in evidence but said to have been subject to a deed of trust securing payment of approximately $230.

Within a few weeks after the family came to Poplar Bluff, to wit, about March 15, 1962, plaintiff instituted an action for divorce (hereinafter referred to as the first divorce action) in the Circuit Court of Butler County on grounds here neither revealed nor important. During April or the first part of May 1962 and while the first divorce action was pending, defendant discovered that plaintiff was having 'an affair' with one L _____, a resident of St. Louis, with whom (as plaintiff readily admitted upon trial of the instant case) she had had adulterous relations on two occasions at a Poplar Bluff motel. When accused of infidelity by her husband, plaintiff made full confession to him and, upon his insistence, like confession to her minister at an appointment made by her husband. On May 14, 1962, defendant 'helped' plaintiff to compose, and typed for her a letter to her attorney requesting him to dismiss the first divorce action, which was done. Thereafter, plaintiff and defendant resumed cohabitation and lived together as husband and wife for approximately two and one-half years until their separation about November 14, 1964, shortly prior to institution of the case at bar.

From plaintiff's testimony, it appears that the primary factors contributing to marital friction (subsequent to the reconciliation in May 1962) were defendant's unexplained evenings away from home, his late hours, and his habitual beer drinking. As plaintiff put it, 'Art likes his good times without me, so he stays out late at night and comes in when he pleases.' When asked whether defendant told her 'where he went and what he did and why he was out late,' plaintiff said that 'sometimes he would and sometimes he didn't, but it wasn't any of my business.' Marital discord mounted to a climax and the parties came to a parting of the ways on the Monday before defendant 'moved out' on November 14, 1964. Defendant had gone bowling that evening as he had 'so many times in the last three years.' In a telephone call to plaintiff, he had told her that 'I am going out and have some beer tonight and I don't want you to say anything when I come in, I intend to come in when I get good and ready'; and, when she asked where he was going, he named an establishment which, as plaintiff ascertained, closed at 1:30 A.M. When defendant came home at 2:45 A.M. 'drinking as usual,' he offered the explanation that 'he had drank (sic) fourteen bottles of beer' and had 'passed out' in his automobile after the establishment closed. In the ensuing argument, plaintiff expressed her disbelief of defendant's explanation, told him that 'we can't get along this way,' and invited him to leave. He did so on November 14.

Although avoiding any charge that defendant came home unable 'to navigate under his own power' (to borrow the words of his attorney), plaintiff asserted that her husband had made 'a practice of coming home' after he had been drinking (as he had done on the final Monday night) 'four or five times a week at the last and . . . in the last three years about two or three times a week . . . anywhere from midnight until three in the morning.' Plaintiff did not profess any knowledge as to whether defendant had been involved with other women--'I have never followed him.' But, as plaintiff put it, 'Art told me he didn't love me and he didn't want me and if we continued to live together it would be as he desired to do, and I might as well keep my mouth shut about it.'

Our courts long ago recognized the impossibility of formulating any allencompassing rule as to what will justify a decree of divorce for alleged indignities and confirmed the necessity of determining each case on its own particular facts and circumstances; ¹ but, as a guide in cases of this character, it is said that indignities warranting the granting of a divorce ordinarily must amount to a continuous course of conduct by one spouse constituting a species of mental cruelty, connoting settled hatred and a plain manifestation of alienation and estrangement, and rendering the condition of the other spouse intolerable through acts of such character and frequency as to be subversive of the family relationship. ² We have no doubt but that plaintiff's testimony, which was accepted by the trial court, showed such indignities by defendant and established plaintiff's status as that of the injured party.

However, she would not have been entitled to a decree of divorce unless the trial court reasonably could have found (as he did) that she also was the innocent party. ³ In our review of the evidence bearing upon this finding, we remain maindful that the requirement of innocence did not contemplate proof of such exemplary deportment or angelic perfection as to have excluded all misconduct but simply a showing that, in the circumstances of the case, plaintiff had not been guilty of such conduct as would have entitled defendant to a divorce. ⁴

We turn to a consideration of the specific conduct on the part of plaintiff which defendant here points out in support of his contention that he should have been granted a divorce on his cross-bill. One indignity pleaded therein was that 'plaintiff has threatened the life of the defendant.' The evidence pertaining to this allegation follows. When asked on cross-examination whether she had told defendant 'shortly before' November 14, 1964, that 'you were going to shoot off a certain part of his body if you didn't get a divorce,' plaintiff answered: 'When he came in drunk . . . I said, Art, I am getting so tired of this I can't stand it. I had spent in September four days in the hospital up here for depression mostly, and I told him I couldn't stand it any longer, that I could kill him for what he was doing to me. I didn't say any portion of his body.' In response to a question by his counsel directed to the same incident, defendant stated: 'She said that if the judge didn't give her what she asked for she would.' There was no suggestion that plaintiff's cry of anguish and despair was accompanied of followed by any move to inflict harm or injury upon defendant. Cf. Culp v. Culp, Mo.App., 164 S.W.2d 623, 626(4). If plaintiff's testimony was believed, defendant was in no position to rely on this incident, for it was within the category concerning which our appellate courts have observed in numerous cases that one spouse can be guilty of acts which explain and afford justification for an outburst of ill-considered conduct on the part of the other ⁵ or, otherwise put, that one spouse will not be heard to complain of acts into which he has goaded the other. ⁶ And, within this same category was plaintiff's conduct (characterized by defendant as an indignity against him) on the Monday night preceding November 14, 1964.

The only other indignities pleaded in defendant's cross-bill were plaintiff's institution of the first divorce action in March 1962 and her consorting with L _____ prior to dismissal of that action in May 1962. Defendant admitted upon trial that, after he had discovered plaintiff's infidelity, she had made full confession thereof to him and, upon his insistence, like confession to her minister, that he (defendant) thereafter had 'helped' plaintiff to compose, and had typed for her, a letter to her attorney requesting him to dismiss the first divorce action, and that, upon his (defendant's)...