Rogers v. Rogers, 24317

• Decision Date: 07 February 1966
• Docket Number: No. 24317,24317
• Citation: 399 S.W.2d 606
• Parties: Elizabeth Walter ROGERS, Appellant, v. Daniel L. ROGERS, Respondent.
• Court: Missouri Court of Appeals

Page 606

399 S.W.2d 606

Elizabeth Walter ROGERS, Appellant, v. Daniel L. ROGERS, Respondent.

No. 24317.

Kansas City Court of Appeals, Missouri.

Feb. 7, 1966.

Roy K. Dietrich, Arlyn D. Haxton, Dietrich, Tyler, Davis, Burrell & Dicus Kansas City, for appellant.

Charles L. Carr, Kansas City, Clyde E. Rogers, Fayette, for respondent.

DEW, Special Commissioner.

Plaintiff sued for divorce, custody of her children, allowance for their support and maintenance, temporary and permanent alimony and attorney's fees and an accounting of her property and effects in the possession of the defendant. By his answer defendant challenged the sufficiency of plaintiff's residential qualifications to vest the trial court with jurisdiction of the parties. He further denied, generally, the controversial matters pleaded by the plaintiff or their signification, asked for custody of the children, made no counterplea for divorce, but pleaded his desire for a reconciliation. He admitted his liability to support the children. The court denied the plaintiff a divorce and other relief prayed for, dismissed her petition, but awarded her $750 attorneys' fees, which defendant paid at the close of the testimony. Plaintiff has appealed.

The evidence as to the plaintiff's residence was sufficient to support the ruling of the court sustaining its jurisdiction and the point is not raised here on appeal.

The sole ground assigned in plaintiff's petition is that the defendant has offered her such indignities as to render her condition intolerable. Although motions for temporary alimony and other relief prayed were filed, they were not called up or presented to the court for hearing and are not an issue on appeal.

Plaintiff's evidence was that as a young girl she lived in Overland Park, Kansas; that she later attended Grinnell College, Grinnell, Iowa, aftewards taking a business course enabling her to obtain employment in the office of the Atomic Energy Commission in 1955 in Albuquerque, New Mexico. There she met the defendant, then a captain at the Kirkland Air Force Base. They married in 1959, she at the age of 28, he at 32. A few months thereafter defendant was transferred to Eglin Air Force Base, Eglin, Florida. According to plaintiff, he told plaintiff he was being transferred because of personal differences within the personnel.

Plaintiff testified to incidents pleaded by her as indignities offered her by the defendant. She said that at Eglin, defendant embarrassed her by quarreling with the lady in charge of issuing furniture for the housing at the Base, after which he told the plaintiff that the lady had fainted. She testified that the defendant publicly and privately criticized her housekeeping; that on one occasion he told her that considering her premarital chastity her 'dates' must have been 'goons'. Once, she said, when visiting neighborhood friends, she, at a late hour, referred to her sleepiness and was humiliated by defendant's remarks to the guests that he hoped she would get sleepy so that she would not pester him all night to make love to her. She said that shortly after their marriage defendant became indifferent toward her, refusing for long periods to show her any affection or even to talk to her, and when she would suggest outside advice on their marital troubles, he would tell her she should adjust herself to his moods, which he would not change, and thus to make him care for her.

Plaintiff further testified that within a year after their marriage she obtained defendant's consent to come to Kansas City for psychiatric treatments which she thought might help solve their marital troubles. After a month's treatments she returned to Eglin Base to build up defendant's ego and to regain his affection. During her stay in Kansas City she wrote several letters to defendant, expressing her deep and abiding affection for defendant, acknowledging his letters and birthday remembrance to her. Soon after her return she became pregnant with their first child, a boy.

According to plaintiff's testimony defendant became oblivious of her pain and suffering while she was expecting the birth of their child and subjected her to embarrassment in public. On one occasion, she said, at a neighborhood party, defendant suggested to a man present that he feel plaintiff's abdomen to notice movements of the unborn child. Referring to the time when it was necessary for her to go at once to the hospital for her first child delivery, defendant calmly prepared and ate a dish of cereal. Plaintiff stated that defendant often indulged in rude arguments with her friends; that he would let her lady friends return to their homes in the dark alone after their visits and often would not even turn on the lights for them. She said she wanted to have her first child baptized, but defendant refused, saying that they should wait for the child to make its own decision on the matter. Her second child, a boy, was born within two years after the first.

Plaintiff said that defendant criticized her manner of changing diapers on the children; that he complained if she seemed to show a preference for one of the children over the other if she sought to comfort either in pain or trouble. She related an incident when attending a party in a neighbor's house where the hostess had frankly asked the guests to leave early since she was planning a trip the following morning, and defendant insisted on staying and did stay until an early hour in the morning, thus causing plaintiff much chagrin and embarrassment. She stated to the court that she would not divorce her husband for those indignities alone, which she had described, but that they should be multiplied by the hundreds. In July, 1963, plaintiff separated from defendant, returning with her father and her children to Kansas City, Missouri, where she found an apartment on Ward Parkway that would accept children.

Friends and neighbors testified to the plaintiff's good health and happy disposition before the marriage and as to her nervousness and reticence during her pregnancies and thereafter. They spoke of defendant's apparent lack of solicitude toward plaintiff's physical condition after the separation. They praised her capability as a mother of her two baby boys and as an excellent housekeeper.

The extensive testimony relative to plaintiff's substantial investments and assets in her own name will be omitted for the reasons stated later.

Testifying in his own behalf the defendant said he was a major in the United States Air Force and a veteran of the Korean war. He was questioned about the incidents pleaded and described by the plaintiff. He explained that his remark that plaintiff did no work around the house was made in a bantering 'tongue-in-the-cheek' manner; that she, in fact, was such a good housekeeper that she got nervous if anything about the house was out of order; that he never criticized plaintiff about changing the babies' diapers but did say that one of the neighborhood women assisting plaintiff, changed the diapers too often and unnecessarily. He admitted saying at a friend's house one evening that he hoped plaintiff would 'sleep so that she would not ask me to pester her all night long'. He said that among their friends such a remark would call for a 'blood look' from the wife, which he considered a compliment. He stated that plaintiff tended to panic in emergencies, and when one of the children might hurt himself, she would pick up the child and cause him to scream and call for defendant, who would take the child and quiet him down. On such occasions plaintiff would become offended. Defendant was asked to explain the charge that on one occasion at a neighborhood gathering he suggested to one of the men present that he feel of plaintiff's abdomen to prove defendant's statement that movements of the unborn child could be felt. He said, in effect, that there was much conversation there about the expected child and defendant remarked to a man present that such prenatal activity of the child could be noted, which the man seemed to doubt. Defendant said that in his exuberance over the prospect of his first child he made the suggestion which, of course, was not carried out by the other guest. Plaintiff was much embarrassed about the matter, for which defendant later apologized to her at home.

Defendant denied any neglect of plaintiff at the time of her first confinement. He said he was at all times concerned about her condition. When she and the baby returned from the hospital he assumed the duty of feeding the baby at 2:00 o'clock in the morning. Plaintiff's pain and suffering continued and defendant took her back to the hospital. The doctor found nothing unusual about her condition and she returned home. However, the continued pains were so severe that he took plaintiff again to the hospital, where the cause of her trouble was diagnosed and treated. Returning again to her home, and with the help of plaintiff's mother and later his own mother, plaintiff and the baby were cared for. While plaintiff was in the hospital, defendant called to see her every day. During such hospital confinement following the birth of the first baby he had the sole care and responsibility for it, employing a neighborhood girl to sit-in while he was absent at the hospital. Since defendant's work and schedule required him to be at work at 7:00 o'clock in the morning he got his mother to help the family and she stayed four weeks.

When asked about an incident complained of by the plaintiff when defendant invited a house guest to visit them and did not first consult the plaintiff, he said the guest was a young nephew of his and his visit was enjoyed by all the family, including the plaintiff. He also denied that he pretended deafness when spoken to by the plaintiff. They discussed their moods, he said, but never did he give plaintiff the impression that she would have to live with him regardless of his moods which he would not...