Shine v. Shine

• Decision Date: 02 October 1916
• Docket Number: No. 11898.,11898.
• Citation: 189 S.W. 403
• Parties: SHINE v. SHINE.
• Court: Missouri Court of Appeals

189 S.W. 403

SHINE v. SHINE.

No. 11898.

Kansas City Court of Appeals. Missouri.

October 2, 1916.

Rehearing Denied November 6, 1916.

Appeal from Circuit Court, Jackson County; E. E. Porterfield, Judge.

"Not to be officially published."

Action by John J. Shine against Margaret M. Shine, in which defendant filed a cross-bill. From a judgment dismissing both petition and cross-bill, both parties appeal. Reversed and remanded.

Marley & Marley, of Kansas City, for plaintiff. John T. Harding and Joseph S Rust, both of Kansas City, for defendant.

TRIMBLE, J.

This is an action for divorce brought July 20, 1914, by the husband on the ground of desertion. His wife filed a cross-bill charging indignities. After a hearing, the court refused to grant a divorce to either party and dismissed both petition and cross-bill. Both sides have appealed.

The parties were married June 12, 1901. At the very outset of their married life a step was taken fraught with danger to their future peace and happiness. Instead of going to themselves and setting up a home of their own, the husband took his young bride to live in a home with his mother and two sisters. One of the latter was a schoolteacher. The other sister and the mother looked after the household. Necessarily, the wife was in a somewhat anomalous and, to say the least, limited, situation — without responsibility and without authority in her own home. For a time, while the wife was young, and before the coming of a child had brought its trying cares and sources of household irritation, together with soberer views of life, the position of the wife brought forth no outbreaking or marked unhappiness. The record does not go into details concerning the four years that elapsed between the marriage and the birth of a child. Those years were passed over with the general statement that there was in the family "no open inharmony," no open quarrel. It is clear, however, from little side lights upon the family life, gathered from the testimony of its various members, that inharmonies did arise from time to time, and though each of them appears small in itself, yet, as they arose out of the situation in which all persons were placed, and at a point of contact so close and so constant, they were none the less painful and difficult to bear. This should not be considered as casting any reflection upon the other members of the family. Undoubtedly they were and are ladies of culture and refinement and deported themselves as such. Doubtless no one was to blame for the inharmony that did exist; it was the inevitable outgrowth of the situation hereinbefore referred to. But although inharmony existed to some extent, the occasions of open family discord had not yet arisen to reveal to the wife the fact that, while she was nominally in the family, she was not a member of it.

A boy, Pierce W. Shine, was born July 12, 1905. From this time the wife's acute and wearing unhappiness began. Her view is that her husband began then to openly manifest his lack of affection for her and to treat her with coldness and indifference; that he did not live with her as a husband after the child was born, with four exceptions, two of them at the time of trips to Carrollton, Mo., another to New York taken, especially the latter, with a view to reconciling their differences, and again upon another occasion; that after the birth of the child her husband never kissed her or showed any affection for her; that during their entire married life he never took her to call on the neighbors, or to visit any places of amusement, except once to a lecture; that sometimes he went automobile riding with a neighboring family and left her at home; and that she was otherwise ignored and left to herself. Much, if not all of this, is denied by the husband, although it is conceded that, after the arrival of the baby, he ceased to occupy the same room with his wife. The parties differ in their testimony concerning the reason for this. The husband says he occupied a different room because the boy slept with her; that his occupancy of a separate room was on account of the presence of the child, for the health of the family, at her suggestion, and with her consent; that he considered they lived together as husband and wife until she left home on March 15, 1913; that he occupied her room "off and on" up to that date, but was unable to say how much of the time. After pressure under cross-examination he said he occupied her room and bed one-third of the time, and finally said it was one night in the month, perhaps more. But although the husband's explanation of his absence from his wife's room is that she suggested and consented thereto, yet the testimony of one of the husband's sisters revealed the fact that the wife complained of that situation some six or seven years before the separation, when the boy was two or three years old, and that the wife charged the family with responsibility for it. The wife's complaint on this score should not be regarded as disclosing indelicacy and lack of modesty, or a coarse demand for the fleshly rights of marriage. Such neglect on the part of a husband marks too well the waning and death of conjugal affection; and, with no reference whatever to physical desires, reveals to a wife, in the most convincing way, that her husband's coldness and indifference is not superficial, attributable merely to the natural reticence of a silent and busy man, but is unerringly indicative of the fact that the wife is indeed outside the sphere of his love and no longer queen of his heart and life. And, notwithstanding the husband's denial of the charge of coldness and indifference, the impression forced upon us by a study of the record in all its bearings is that the charge is, in large degree, true. He admits that he and the boy went automobile riding and that his wife was not taken along, but he did not regard her as being left behind. He did not refuse to take her out among friends and to places of amusement, but at the same time the record is bare of any offers upon his part to do so, nor is it shown that they actually did go anywhere together except to the one lecture and the two trips mentioned above, and once to a neighbor's upon invitation. Defendant, however, says he frequently brought home theater tickets for his wife and the other members of the family, but that he did not go himself on account of business engagements. All the testimony, even that on his side, shows that he does not seem to have appreciated the situation in which his wife was placed, nor did he offer to ameliorate the difficulties thereof by siding with her, or at least attempting to mollify the situation by a word of sympathy or of conciliatory counsel. In the instances of household unhappiness hereinafter recited, he actively took sides against his wife, and it is not recorded anywhere that he ever sought to comfort and sustain her, or that, if she were in the wrong through a misapprehension of the facts, he ever tried to help her to a better and happier realization of them, or made any effort to secure domestic harmony.

After the boy grew out of actual babyhood, the question of his discipline became a source of irritation in the household. He got along well with one of his aunts, but quarreled frequently with the other, and for which his mother says she herself often punished him. At times the mother heard the boy and his aunt having trouble, and she would call him to come to her, but the child did not come, being detained for punishment by the aunt. On one occasion the mother heard the two having some trouble downstairs, and she called to the child to come up where she was. The child did not come when called, and, finally, when he did come, gave as a reason for not obeying, his detention by his aunt. The mother went downstairs and spoke to the aunt about it, and the latter admitted she had not let him come, and, when asked by the mother why she did not send the child to her, said that, when he did things when she was around that she did not like, he had to settle with her first; that she would manage him to suit herself. To which the mother replied that she would see her husband and ascertain from him if such was to be the case. She did ask him that night after dinner, privately in the library, whether she or the aunt was to have charge of and correct the boy; that the divided authority was making him hard to manage and required frequent punishments of him. Just then the aunt came in, saying she wanted to explain, but the wife said she had heard all the explanation that was necessary; she did not want to hear explanations. The husband, instead of trying to solve the difficulty, began walking excitedly about the room, siding against his wife, making violent gesticulations and unpleasant remarks, upbraiding his wife, and telling her the household was a happy one with never any trouble until she came into it. He ended by taking the child and going into the next room and, upon the wife following them in, asked her what she was doing in there; to which she replied that she came to hear the boy say his prayers and to kiss him goodnight. This her husband refused to allow her to do, and, according to her testimony, pushed her out of the room, bruising her shoulder in doing so, and telling her he would stay there all night before she should hear the boy's prayers, and that she should never hear his prayers again. Finally, upon complaint of the child that he was tired, the father sent him off to bed, and the wife retired to her room, where she suffered a nervous chill. The testimony of the aunt shows that she did have trouble with the boy at times; and it also discloses a determination on her part to deal with him herself, though she says it was because the mother would not. She, herself, testifies that, at the time she went in to make the explanation to which the wife would not listen, she said:

"If that child tries to run over me, I am going...