Ridgley v. Ridgley
| Decision Date | 17 September 1963 |
| Docket Number | No. 31405,31405 |
| Citation | 370 S.W.2d 679 |
| Parties | Leona B. RIDGLEY, Plaintiff-Respondent, v. Elmer E. RIDGLEY, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Hale W. Brown, Kirkwood, for defendant-appellant.
Noel F. Delporte, St. Louis, for plaintiff-respondent.
DOERNER, Commissioner.
Defendant appeals from a judgment and decree awarding plaintiff a divorce, alimony in gross of $4,500, and $650 for attorney's fees.
Plaintiff alleged two grounds in her petition, indignities and desertion. In his first amended answer defendant admitted the marriage and separation, denied the averments concerning the grounds for divorce, and as an affirmative defense pleaded that all the indignities of which plaintiff complained if they occurred, which defendant denied, had occurred more than five or ten years before plaintiff filed her petition and were therefore barred by the statute of limitations. Plaintiff replied, denying the allegations constituting the affirmative defense.
The record reveals that the parties were married on September 8, 1920, and that five children were born of their union, all of whom were of age in 1958 when plaintiff filed her action. For the first few years following their marriage the parties lived on a farm in St. Louis County which defendant rented from his mother, but in 1929 they purchased from plaintiff's brother, for $2,000, a tract of about two acres on Wild Horse Creek Road in the same county. The title thereto was taken in both names as an estate by the entirety. No part of the purchase price was paid at that time, and in lieu thereof notes and two deeds of trust for the full amount were given to the seller. In fact, all that was ever paid thereafter by either party was $800 realized, '* * * when the road went through there * * *.' Also in 1929 the plaintiff inherited 22.65 acres of bottom land from her family. The exact location of this acreage was not given, but the evidence indicates that it was probably in the neighborhood of the two acre tract. The following year, in 1930, the parties moved into an old, five room house located on the smaller parcel.
The evidence further shows that in the years which followed this move the defendant neglected his family, and spent an increasing number of the daylight hours, as well as most of his nights, whiling away his time at a tavern or store talking to the boys (as he expressed it), playing cards, and shooting pool. While ostensibly engaged in farming the 22.65 acres, and in raising stock (on pasture furnished rent free by plaintiff's family), and although able to work, the defendant performed less and less of the labor required, either leaving the necessary tasks to be performed by the parties' older sons, or letting them remain undone. The result was that the farm produced little in the way of crops, and defendant contributed no money towards the support of plaintiff and their children. The evidence further shows that for a considerable number of years before their separation the entire burden of supporting the family was thereby cast on plaintiff and the two older boys, and that by dint of hard work, aided by gifts of food from plaintiff's sister, they managed to eke out a meager living. There was also evidence of physical violence sustained by plaintiff at defendant's hands, of threats made by him to cut her throat with a razor and to strike her with a hammer, and of an attempt by defendant to obtain possession of checks mailed to plaintiff in payment of cream sold by her, which was a major source of her slender and inadequate income.
It is apparent from the record that defendant's misconduct, his lack of industry, and his neglect of and failure to support his family cast a heavy and abnormal burden on plaintiff, and eventually led to an estangement. Plaintiff testified that defendant voluntarily stopped having marital relations with her, which defendant did not dispute. Both parties related that for some time before the separation occurred defendant ceased sharing their bedroom, and slept in the room occupied by their sons. Plaintiff stated, and defendant did not deny, that the arrangement was defendant's idea. Defendant testified that for almost a year before he left home plaintiff refused to cook meals for him, to make his bed, or to launder his clothes. Plaintiff admitted on cross-examination that she had not performed such tasks for the five or six months before defendant's departure, her explanation being that she was overworked and worn out from her efforts to perform her household tasks and also support her family, and that defendant's conduct caused her to reach the point where, '* * * I couldn't take it any longer. * * *' Shortly before defendant left home he finally sought and obtained employment, at the TNT plant, but even after that he failed to contribute anything to the support of plaintiff or his family. About the middle of December, 1941, defendant stayed out all night, returned about one o'clock of the following afternoon, packed his belongings, and departed from the family home, never to return. At that time Jordan, the oldest child, was 20, Glenn was 16 or 17; the two daughters were 11 and 9; and Donnie, the youngest son, was 7. During the years which followed the defendant, by his own admission and though gainfully employed until 1959 or 1960, never contributed a cent to the support of his wife or his children. When asked by his own counsel as to how he figured they were going to get by, his explanation was:
Defendant first contends that the court erred in awarding plaintiff a divorce on either of the grounds alleged in her petition. As we read his brief, he appears to argue, as to the grounds of indignities, that plaintiff was not an innocent party because she admittedly refused to cook for defendant or otherwise take care of his wants for a period immediately before the separation. It is crystal clear from the evidence that plaintiff patiently endured defendant's mistreatment, shiftlessness and neglect for years; that she was overburdened with the cares and responsibilities which were cast on her by defendant's failure and refusal to perform the normal duties of a husband and father; that eventually (and not surprisingly), her forbearance and endurance of defendant's mistreatment of her came to an end; and that her conduct and feelings toward plaintiff were induced and provoked by his derelictions and delinquencies. The law is not so unreasonable as to demand of an injured and long-suffering wife the patience of a Job, nor does the requirement of innocence contemplate proof of such exemplary and angelic perfection as to exclude any misconduct or unwise acts; all that she need show is that she has not been guilty of conduct constituting a ground or grounds for divorce. Simon v. Simon, Mo., 248 S.W.2d 560; L_____ v. N_____, Mo.App., 326 S.W.2d 751. Plaintiff sustained that burden. We find no merit in defendant's argument.
On cross-examination, immediately after testifying that she was worn-out from her efforts and had reached the point where '* * * I couldn't take it any longer * * *,' plaintiff was asked whether it was her desire that defendant leave home. She replied that she hadn't cared one way or another, that defendant had been '* * * no pleasure'; and that she had once told defendant that if he '* * * didn't start paying us some money he could get up and go, and he took off as soon as he started making money at the TNT.' Defendant seizes upon these answers and argues that they show that plaintiff consented to the separation. As to plaintiff's testimony that she didn't care, there is nothing to indicate that she communicated her feeling to defendant at the time he left. Any undisclosed emotional reaction which she may have experienced, resulting from defendant's intolerable treatment of her, did not constitute consent or acquiescence to the separation. Redford v. Redford, 162 Mo.App. 127, 144 S.W. 125. Her statement to him that if he did not start contributing to plaintiff's support and that of their children he could leave was obviously made some time before he left. Considered in the light of plaintiff's preceding testimony that her situation had become unendurable, we regard her remark as a protest against defendant's failure to fulfill his duties, not as a consent to his subsequent abandonment of plaintiff.
Defendant next contends that in the light of defendant's ability to pay, and in the absence of any evidence as to plaintiff's needs or resources, the court erred in ordering defendant to pay plaintiff the sum of $4,500 as alimony in gross. According to the uncontradicted evidence, his only income was his Social Security benefit of $92 a month and what he could earn doing odd jobs. At the time of the trial his total assets amounted to approximately $6,500, consisting of his one-half interest as a tenant in common in the two acre tract (if and when the divorce became final), worth at most $5,000; his automobile, which he valued at different times at $700 or $800, and $1500; about $12 in cash; and a life insurance policy with a face value of $2,000, the cash surrender value of which does not appear in the evidence. On the other hand, as the defendant points out, there is an almost total lack of evidence concerning plaintiff's circumstances. No testimony as to her age was given, though we may infer that she was no longer in the bloom of youth since the parties were married in 1920 and the trial occurred in 1962. But more importantly, there was no evidence introduced as to her present income, her current need for support, the state of her health, or the extent and value of her own means. All that...
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