Schwarz v. Schwarz

• Citation: 427 S.W.2d 734
• Decision Date: 19 March 1968
• Docket Number: No. 32784,32784
• Parties: Frederick K. SCHWARZ, Plaintiff-Appellant, v. Emily W. SCHWARZ, Defendant-Respondent.
• Court: Court of Appeal of Missouri (US)

Page 734

427 S.W.2d 734

Frederick K. SCHWARZ, Plaintiff-Appellant, v. Emily W. SCHWARZ, Defendant-Respondent.

No. 32784.

St. Louis Court of Appeals, Missouri.

March 19, 1968.

Motion for Rehearing or to Modify Opinion Denied April 19, 1968.

McElwee & McElwee, Rexford H. Caruthers, St. Louis, for plaintiff-appellant.

G. A. Buder, Jr., Richard O. Roberts, St. Louis, for defendant-respondent.

BRADY, Commissioner.

The trial court entered judgment against plaintiff on his petition for divorce and against defendant on her cross-bill for separate maintenance. Plaintiff appeals from the judgment denying him a divorce.

A statement of the pleadings and action taken by the trial court will help delineate the issues. The petition alleged defendant offered such indignities to plaintiff as to render his condition intolerable. See § 452.010, RSMo1959, V.A.M.S. Four indignities were set out as grounds. In view of our decision those pertinent are the allegations defendant became cold and indifferent toward plaintiff and on numerous occasions neglected, failed and refused to perform her marital duties and to treat plaintiff with kindness, consideration, love or affection; on numerous occasions defendant became violent and '* * * quarreled at, insulted, beat and battered the plaintiff and threatened to have him thrown out of the house'; and defendant interfered with plaintiff's disciplining the children born of this marriage. Plaintiff prayed for divorce and '* * * that the Court make such orders, judgments and decrees concerning the care, custody, control and maintenance of the minor children born of the marriage as in the nature of the case and the circumstances of the parties would be meet and just.'

Defendant's answer admitted the marriage, the birth of the children, and denied every other allegation in the petition. Her cross-bill was also based on the ground of indignities. The allegations of her cross-bill were: (1) plaintiff without sufficient cause left home and abandoned her and has refused to return home; (2) plaintiff has displayed a violent and ungovernable temper toward her particularly with respect to her efforts to conduct Christian training for her children; (3) plaintiff unreasonably objects to defendant's encouragement of a Christian atmosphere in the home; (4) plaintiff's actions and conduct clearly indicate a lack of love for the defendant and a desire not to live with defendant as his wife; (5) plaintiff has refused to show proper respect toward defendant and has belittled and embarrassed her before their children and friends; (6) plaintiff has threatened her with bodily harm and has struck her and knocked her to the floor before the children; and (7) plaintiff on occasions has cursed her and used vile and profane language before the children.

The trial court found '* * * the indignities complained of were too scattered and remote and did not show a course of conduct or continued treatment as renders Plaintiff's condition intolerable, and tends to the subversion of the family relationship, * * *' and on that ground denied plaintiff's petition for divorce. Plaintiff contends the trial court's finding necessarily implies it found there were indignities suffered by the plaintiff and the only issue is whether the trial court's conclusion the indignities suffered by the plaintiff were not of a sufficiently continuous nature to warrant the granting of a divorce is to be upheld. In our view this question is more academic than practical for the reason we try cases of this nature de novo entering such judgment as the trial court should have entered giving due regard to the opportunity of the trial court to judge the credibility of the witnesses where there is conflicting testimony while remaining cognizant of our duty to reach our own conclusions from a review of the evidence. Civil Rule 73.01(d), V.A.M.R. Heibel v. Heibel, Mo.App., 366 S.W.2d 37.

It is unnecessary to burden this opinion with a detailed recitation of the evidence offered by plaintiff and defendant as to each of the occurrences which plaintiff contends constitute proof of one or more of the indignities alleged in his petition. The testimony offered in this case was lengthy and extremely rambling. The parties lived in St. Louis at the beginning of their marriage, moved to Gulfport Mississippi upon plaintiff's transfer there by his Company, then to Pennsylvania also upon transfer, and then back to St. Louis County where they lived first on Conway Road and then in a house they built on Babler Road. The parties were married in April of 1954 and the evidence dealt with instances occurring from that date until June of 1965 when the final separation occurred. The probative force of the evidence as to many of the incidents which we deem it unnecessary to relate rests solely upon the issue of credibility of the witnesses; the testimony thereto offered by the parties being sharply conflicting. We need not relate these for the reason, as will later appear herein, there is evidence about which there is no dispute sufficient to substantiate plaintiff's allegation of indignities. Much of the other testimony we have deleted from this opinion concerns incidents which are uncontradicted or admitted by the defendant. Examples of this type of evidence are to be found in plaintiff's evidence that while the parties were living in Mississippi defendant required plaintiff to telephone to stop plaintiff's parents from coming for their first visit in some six months, and on another occasion to write to his parents withdrawing an invitation to visit. Another is the 'onion and diaper pin' incident. This occurrence took place when plaintiff telephoned home from the office and informed defendant he was to have dinner with a customer and his Company's plant manager. While out for dinner he had three or four green onions. When he came home his wife didn't speak to him. He didn't know why. Plaintiff retired but defendant came to the bedroom, turned on all the lights, and told him that because he smelled of onions he was going to have to sleep somewhere else. Plaintiff refused and defendant pulled the covers off him, and when he still did not move she went to the bathroom, got some water and threw it on him. When plaintiff still refused to move defendant took a diaper pin and stuck him with it. The second time she stuck him with the diaper pin he slapped her whereupon she became extremely angry and threatened to call the police and her mother. He finally moved and slept in the den. We have deleted the evidence as to other such instances for the reason they fail to show a continuous course of conduct by one spouse constituting a species of mental cruelty connoting settled hatred and involving a plain manifestation of alienation and estrangement rendering the condition of the other spouse intolerable through acts of such character and frequency as to be subversive of the family relationship. That is the definition of indignities warranting a divorce. Mo.Dig., Divorce, k29. O'Leary v. O'Leary, Mo.App., 385 S.W.2d 346, l.c. 351(2) and cases there cited; Reeves v. Reeves, Mo.App., 399 S.W.2d 641(2). We will confine our recitation of the evidence to those instances occurring between September of 1963 when the parties moved into the house on Babler Road in St. Louis County and June of 1965 when the final separation occurred which in our opinion require reversal of the trial court's judgment.

These parties moved into the house on Babler Road in September of 1963. They had been having trouble all through their marriage with regard to the frequency of their sexual relations. Plaintiff testified defendant would just refuse to cooperate with the result on at least one occasion he was unable to accomplish the sexual act whereupon defendant laughed at him and asked what was the matter with him. He left home that night. At the office the next day he learned there was a Company function that night involving the new vice-president and general manager of his Company who had brought his wife with him on a visit and invited plaintiff and a number of his employees and their wives to a cocktail party. He called defendant and asked if she would go and she said she would and asked if he was coming home whereupon plaintiff said they would discuss that matter. The parties did attend this function. Later that evening plaintiff testified he told defendant: '* * * I couldn't see any reason for me to stay. She pleaded and begged and I told her I expected her to be a wife and to get the living room furnished and to do all these things and I wasn't going to stand any more of this mistreatment in bed and she agreed and we went to bed together and had an enjoyable evening. Three days later she began refusing me again and as I said, her refusals any more were quite degrading.' As an example he testified that, following this incident, he approached her with regard to intercourse while they were in bed. She stated she was in her menstrual period and was wearing a sanitary napkin. She told plaintiff: 'The next time I will take it off and throw it in your face * * *.'

Plaintiff also complained defendant was disciplining one of their children in a manner of which he disapproved and that she refused to desist or to discuss the matter with him. His evidence was that defendant would fill a wash basin full of water and push the boy's face in it. He strongly objected to this practice, and on one occasion he found that she had been disciplining him in such a fashion to the extent the boy was crying. When he attempted to talk to defendant about the matter he testified her only comment was: 'To chastise is to love'. She refused to otherwise discuss the incident.

In January of 1964 plaintiff's testimony was he came home from work and found defendant on the sofa in the den reading a book. After dinner she continued to read. When it became time for the children to go to bed defendant told them to do so. The...