Spainhower v. Spainhower, No. 33168

CourtCourt of Appeal of Missouri (US)
Writing for the CourtPER CURIAM
Citation441 S.W.2d 755
PartiesNina SPAINHOWER, Plaintiff-Respondent, v. Lloyd SPAINHOWER, Defendant-Appellant.
Decision Date20 May 1969
Docket NumberNo. 33168

Page 755

441 S.W.2d 755
Nina SPAINHOWER, Plaintiff-Respondent,
v.
Lloyd SPAINHOWER, Defendant-Appellant.
No. 33168.
St. Louis Court of Appeals, Missouri.
May 20, 1969.

Page 756

William J. Becker, Clayton, for appellant.

Carter, Fitzsimmons & Brinker, Clayton, for respondent.

PER CURIAM.

Divorce action in which plaintiff wife founded her claim upon general indignities specifying, among other things, that defendant cursed and swore at plaintiff, frequently struck her; that during their marriage defendant frequently stayed out all night and refused any explanation of where he had been; that defendant frequently told plaintiff to get out of the house, told her that he did not love her, did not want to live with her, refused to support her adequately; that throughout their marriage defendant frequently came home in an inebriated condition; and that thereby her condition was rendered intolerable. Defendant filed his cross-bill, also alleging indignities. The trial court awarded a divorce to plaintiff, together with $60 per week alimony, $625 for attorney's fees and costs.

The parties were married in March 1938 and except for a brief period when defendant was in flight training, lived together continuously as husband and wife until plaintiff left the family home in August, 1966. When defendant left the Service in 1942 the parties returned to St. Louis and moved into an apartment on Washington Avenue with plaintiff's mother, plaintiff's two sisters, Winifred and Hortense, and plaintiff's brother and his wife. The husband of one of the sisters lived in the apartment also when he was in the City. Plaintiff's brother and wife moved from the apartment in a short time. Plaintiff's mother died in 1957.

In 1960 the family moved into a four-bedroom house on Westminster in St. Louis, on which the defendant made a down payment of $1500. According to plaintiff it was defendant's idea that 'all would live together'. At this time the family group consisted of defendant's

Page 757

mother (who stayed only two weeks), plaintiff's two named sisters (and the husband of one) and the present plaintiff and defendant. Upon moving into the house on Westminster defendant asked plaintiff's sister Winifred to handle all the finances in connection with the place. Under that arrangement he agreed to pay the sister $60.00 per week, which was to be used for payments on the house, upkeep, utilities and food. In addition he gave plaintiff $20.00 per week. The total of $80.00 per week was not sufficient to cover all the expenses of the house and the balance was made up by the contributions of plaintiff's two sisters. The defendant was sometimes irregular in making the $60.00 payment and upon such occasions when he did not pay in full any deficit was made up by sister Winifred.

In the last few years before the separation defendant's regular working hours as a newspaper photographer were from two-thirty in the afternoon to ten or ten-thirty in the evening; although there were occasions when he would be called out much earlier in the day.

The defendant's laundry was done by the plaintiff and one of her sisters. Meals were prepared by sister Hortense. Owing to his hours of employment the family did not eat meals together regularly but there was always something prepared for the defendant's dinner and left for him in the refrigerator at home.

Plaintiff's testimony as to defendant's conduct is hereinafter stated in the chronological order of the events described:

Both plaintiff and her niece by marriage, Mrs. Clark, testified as to the earliest incident stated in the record, which occurred 'about 1960' when plaintiff and defendant were scheduled to go out for the evening together. Upon this occasion the defendant arrived home three hours late and very inebriated. Plaintiff was ready to go out. However defendant went to bed and slept for a time. When he came down he insisted on going out but plaintiff refused to go with him while in such a condition. Thereupon defendant attacked plaintiff while the latter was on a divan. The niece testified that defendant was trying to choke plaintiff. 'He more or less had one of his knees in her stomach and was slapping around at her face and choking her, and the two of us couldn't pull him off. Q. You and who else? A. Hortense. Q. You tried to pull him away? A. And he knocked me back into the floor * * *. My (sick) husband heard it and got up and came down and pulled him off.'

Prior to the two-year period before separation, plaintiff never knew when defendant would get home, and when he came home late in the mornings '--lots of times six o'clock in the morning--' he would stumble up the steps and sometimes could not make it up the stairs. Upon such occasions he would lie on the divan at the living room level and sleep there. This kind of thing occurred two or three times a month in that period and became more frequent within the last two years before separation.

At two years prior to separation defendant used vulgar language and cursed and swore at the plaintiff.

'Q. Would you tell the court when or how often this occurred? A. Mostly when he came home at nights when he had been drinking.

Q. How often or how frequently?

A. Two or three times a week.

Q. Would you tell us what words or language he'd use?

A. I would be sound asleep and he would come home, be drinking, and he'd call me a bitch; and I was home in bed.

Q. And when he'd come home that way, he'd use this language to you?

A. Yes, sir.

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Q. What other words or language did he use to you besides calling you the bitch that you mentioned?

A. Mostly that, but then he would tell me to get out and find a good lawyer, because he was going to take bankruptcy and burn the house down, for me to get out.'

Plaintiff was asked how often her husband struck or hit her or did something physically to her in the last year before they separated and she answered, 'Oh, possibly five or six times'.

'Q. What did he do on those occasions, would you describe that?

A. He'd grab me around my neck and hold my hand and rub my nose all over my face.

Q. Is this usually what he did, the same thing each time?

A. I have had black eyes before that.

Q. How many times have you had black eyes?

A. About four.

Q. In the last two years. Did you have other portions of your--

A. Yes.

Q. What kind of marks?

A. Mostly my nose was black and blue and I'd have blue marks on my neck.'

Q. * * * did you ever fight with him and strike him?

A. I fought back.

Q. Did you ever initiate or start any fights or striking him?

A. No.

Q. What would you do when he'd push your nose in?

A. I'd try to get away from him and I'd scratch him.

Q. Now, what effect, if any, did this have on your nerves or your health, Mrs. Spainhower, his coming home and drinking and cursing and fighting with you?

A. Well, it had the effect that I had to have an ulcer operation.

Q. What is the condition of your nerves now?

A. Not very good.

Q. Are you under a doctor's care?

A. I have been, yes.'

Plaintiff's sister Winifred testified that she was well aware that defendant had a drinking problem, that on numerous occasions when he came home he couldn't get up the stairs. At such times he would sleep on the living room floor or on the divan located there; the last year before the separation was the worst in that regard. She heard plaintiff and defendant quarreling and arguing upon numerous occasions but she became involved only once; she estimated that she had heard the plaintiff screaming upon at least twenty-five occasions over a period of five years. About three or four months before separation, when she heard plaintiff scream for help, she and her sister went to the door of defendant's bedroom and told defendant that if he hit plaintiff again she would call the police. While she never directly witnessed any physical encounter between the two she saw the evidence of injury in marks on plaintiff's throat, eyes and nose many times--'Black and blue marks, and her nose would be all swollen out of shape.' In overhearing quarrels between the parties, she heard defendant call plaintiff a bitch time after time, and 'Get out of the house, you bitch, and take your sisters with you.' Defendant never asked the sisters directly to leave, although plaintiff asked him, 'If you want them to leave, why don't you tell them, Lloyd'? The witness said that on several occasions she and sister Hortense asked of defendant, 'Do you want us to

Page 759

leave, Lloyd? Can you get along better, you and Nina? You're not getting along well now.' His last response, made in the presence of plaintiff, was that 'I will not live with her another day if you leave.' Winifred's suggestion about moving out was made repeatedly over the last two years before separation.

When asked what brought her to the final conclusion to move out of the family residence, plaintiff answered: 'Because he came home night after night and asked me, 'Have you seen a lawyer? You better get a divorce. I'm going to take bankruptcy or burn the house down. I want you out of here'. And I couldn't take it any longer.'

Pressed to fix the time when she reached the decision to move, she answered, 'Well, it was in the back of my mind because he kept nagging me to get out and see a good lawyer, calling me terrible names.' Plaintiff told defendant a week or two before they moved out that she and her sisters were leaving. Thereafter when defendant came in one morning and asked what was going on, plaintiff answered, 'You told me to leave and I'm leaving.' Whereupon defendant said, 'Well, you know this will be the end of us', and plaintiff replied, 'Yes, I know it will be.' Four days before actually leaving the house plaintiff moved out of defendant's bedroom and slept on a twin-bed in Winifred's room. On the morning of the day of departure defendant had gotten up and taken leave of the house, at which time the household rugs were already rolled up ready for moving...

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2 practice notes
  • Frederick v. Frederick, No. 9024
    • United States
    • Court of Appeal of Missouri (US)
    • January 14, 1971
    ...supra, 399 S.W.2d at 644(1)); and each such action addresses itself to the conscience of the court. Spainhower v. Spainhower, Mo.App., 441 S.W.2d 755, 761(2); Oliver v. Oliver, Mo.App., 325 S.W.2d 33, 38(7). With these trite truisms and the hereinbefore-recorded commonplace principles in mi......
  • McGehee v. McGehee, No. 8882
    • United States
    • Court of Appeal of Missouri (US)
    • October 20, 1969
    ...v. O'Neil, Mo.App., 264 S.W. 61), the husband who had the habit of addressing his mate as 'a bitch' (Spainhower v. Spainhower, Mo.App., 441 S.W.2d 755), and the man who denominated his wife as 'a whore' and 'a lair' when she was neither, all received judicial assurance such appellations rea......
2 cases
  • Frederick v. Frederick, No. 9024
    • United States
    • Court of Appeal of Missouri (US)
    • January 14, 1971
    ...supra, 399 S.W.2d at 644(1)); and each such action addresses itself to the conscience of the court. Spainhower v. Spainhower, Mo.App., 441 S.W.2d 755, 761(2); Oliver v. Oliver, Mo.App., 325 S.W.2d 33, 38(7). With these trite truisms and the hereinbefore-recorded commonplace principles in mi......
  • McGehee v. McGehee, No. 8882
    • United States
    • Court of Appeal of Missouri (US)
    • October 20, 1969
    ...v. O'Neil, Mo.App., 264 S.W. 61), the husband who had the habit of addressing his mate as 'a bitch' (Spainhower v. Spainhower, Mo.App., 441 S.W.2d 755), and the man who denominated his wife as 'a whore' and 'a lair' when she was neither, all received judicial assurance such appellations rea......

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