Spencer v. Spencer

• Decision Date: 22 September 1964
• Docket Number: No. 8282,8282
• Citation: 382 S.W.2d 237
• Parties: Thomas SPENCER, Plaintiff-Respondent, v. Marylou R. SPENCER, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 237

382 S.W.2d 237

Thomas SPENCER, Plaintiff-Respondent, v. Marylou R. SPENCER, Defendant-Appellant.

No. 8282.

Springfield Court of Appeals, Missouri.

Sept. 22, 1964.

Byron Kearby, Poplar Bluff, for defendant-appellant.

J. Lee Purcell, Hyde, Purcell & Wilhoit, Poplar Bluff, for plaintiff-respondent.

HOGAN, Judge.

This is a divorce action. In his petition, the plaintiff sought a divorce upon the basis of general indignities, but conceded custody of the parties' minor child to the defendant and tendered his willingness to continue supporting the child if a divorce was granted. In her answer and cross bill, the defendant set up certain matters in recrimination, and also set out certain indignities as grounds for divorce from the plaintiff. In addition, the defendant asked for custody of the child, reasonable support for the child, attorney's fees, and $10,000.00 alimony in gross. After hearing evidence, the trial court has found the plaintiff to be an innocent and injured party and has granted him a divorce. The defendant has been granted custody of the minor child, and plaintiff has been ordered to pay the sum of $100.00 per month as child support. No award of alimony was made. The defendant has appealed, contending generally that the plaintiff has not shown himself to be an innocent and injured party, but that she has, and that the trial court should have granted her the divorce and should have made an award of alimony in gross.

The record on the merits is sparse, and very little appears in the evidence concerning the parties' background. On the basis of what we can glean from the proofs presented, both plaintiff and defendant appear to be well regarded in the community in which they reside. They were married June 12, 1948, and, except for a period of separation in 1953, they lived together until the middle of August 1962. They are the parents of one minor female child, ten years of age at trial time, whose custody is not in question. The plaintiff, Thomas Spencer, was employed by a local bank and appears to have been in charge of the installment loan department. He had been employed at the bank for more than twenty years and, it seems, was a trusted employee, charged with considerable responsibility. All that is shown about the defendant--of a general nature--is that she was 36 years of age at the time of trial, was conceded by the plaintiff to be a 'good moral woman, and a proper person to have custody [of the child].' During the first 'year and a half' of her marriage, Mrs. Spencer had worked for a local insurance firm, contributing her earnings toward the maintenance of her home. Each party conceded the other's good moral character.

The plaintiff's evidence is centered around one episode which, we take it, occurred a short time before the parties finally separated. Concisely put, Mr. Spencer testified that Mrs. Spencer, having told him that she no longer cared for him and no longer desired to live with him, locked him out of the house in which they resided. On seven different occasions, Mr. Spencer testified, at times ranging from 8:00 P.M. to midnight, he was locked out of his residence. That, together with the statement that he was 'treated coldly and indifferently, and the marriage lacked the warmth that you would expect out of the marriage,' represents the sum and substance of the plaintiff's testimony. His whole case, we may add, consisted of his own testimony.

Certain other facts may be inferred from the defendant's testimony, though we must in frankness say her evidence was likewise concise to the point of being cryptic. Drawing such inferences as we think we reasonably may, however, we conclude from Mrs. Spencer's testimony that the parties had been separated for a period of about eight months in 1953, and that at the end of that time they became reconciled--Mr. Spencer gave the date as Thanksgiving 1953--and built a home of their own in Poplar Bluff. Since the reconciliation, the defendant stated, the plaintiff had 'treated me more or less like he would a housekeeper. He would come in when he wanted to and he would leave when he wanted to. * * * Most of the time when he talked to me, it was to cuss me out or bawl me out, and if I tried to talk to him he would say, quit your bitching, or he would slam the door and walk out.' The defendant's evidence was that Mr. Spencer was very niggardly with her; although he made a salary of $150.00 to $200.00 per week, or at least she 'figured that,' he allowed her only $30.00 per week for such necessary items as groceries and clothing, and occasionally, 'usually at Christmas time,' Mr. Spencer would give her 'twenty-five or fifty dollars.' Because of his irregular habits, and his lack of physical attention, Mrs. Spencer believed her husband had been associating with other women.

Though, as we have indicated, the real source of the parties' difficulties is veiled, upon the record presented, at least a part of their difficulty seems to have arisen when they moved into a home constructed for them by Mrs. Spencer's mother, Mrs. Reece. We take it from the record that some three years before the parties were finally separated the defendant's parents came to pay a short visit with Mr. and Mrs. Spencer. Mr. Reece was then ill and, a short time thereafter, died. 'By mutual agreement,' Mrs. Reece came to live with her daughter and son-in-law. Some time after that, again 'by mutual agreement,' Mrs. Reece constructed a more elaborate home, with the understanding that she would retain title to the home and pay the taxes, and Mr. Spencer would pay the utilities. Mrs. Reece was provided with separate quarters. Mrs. Spencer and Mrs. Reece 'worked together' in running the house, and they 'consulted Tom [Mr. Spencer] about it at times.'

After they moved into this new house, according to Mrs. Spencer, her husband's irregular habits, incivility and lack of affection began to affect her health adversely. On several occasions, she found lipstick on her husband's shirt collars and 'because of his sex life at home,' she believed 'he would have to be out with someone else.' Mrs. Reece also suspected her son-in-law and called the defendant's attention to the fact that when she did the washing she found the fly of Mr. Spencer's shorts was sometimes washed out. Both Mrs. Spencer and Mrs. Reece were upset by the plaintiff's irregular habits. Mrs. Spencer was 'becoming nervous and a nervous wreck, and * * * got so [she] couldn't sleep at night, waiting for him [plaintiff] to come in. * * *' Mr. Spencer 'was making a wreck' of Mrs. Reece. As a consequence, and we take it after consultation with Mrs. Reece, Mrs. Spencer informed her husband that 'if he wasn't in by midnight I would put the chain on the door, so that he couldn't come in.' Mrs. Spencer then 'kept on [locking the door] until the week went by, and I finally decided he wasn't going to leave anyway, and so I went to talk to a lawyer about a divorce, and then he [plaintiff] moved out.'

The appellant argues that the plaintiff failed to sustain his burden of proof because his evidence did not actually establish conduct on the defendant's part amounting to indignities within the meaning of the statute, and that the plaintiff has not shown himself to be an innocent and injured party. Rather, the defendant maintains the evidence establishes clearly that she is the innocent and injured party and that she should be awarded the divorce.

In connection with her point that the plaintiff's proof is insufficient, the defendant contends that the plaintiff failed to show such indignities within the meaning of Section 452.010, V.A.M.S., as constitute grounds for a divorce, in that the plaintiff failed to establish a course of conduct on the defendant's part amounting to a species of mental cruelty. In a sense, it is true, the principal acts or indignities relied on by the plaintiff here did constitute but a single episode extending over a period of a week prior to the parties' final separation. It is also true that indignities such as to warrant the granting of a divorce ordinarily must amount to a continuous course of conduct, and single or occasional acts will not suffice. Moore v. Moore, Mo.App., 337 S.W.2d 781, 786-787[2-8]; Clark v. Clark, Mo.App., 306 S.W.2d 641, 646. Even so, we reject the idea that there is a precise interval over which a course of conduct must extend to develop into indignities. The usual statement is that the acts relied on must be 'of such character and frequency as to be subversive of the family relation,' Moore v. Moore, supra, 337 S.W.2d at 786-787[2-8]; Clark v. Clark, supra, 306 S.W.2d at 646; Thomas v. Thomas, Mo.App., 288 S.W.2d 689, 696[4-6], cert. den. 352 U.S. 873, 77 S.Ct. 98, 1 L.Ed.2d 77; but in determining whether the offending party's actions have persisted over a sufficient interval to amount to a 'course of conduct' so as to constitute indignities, we must bear in mind that by design, the statutory word 'indignities' is indefinite, leaving each case to be...