Spitzbarth v. Spitzbarth

• Decision Date: 01 April 1924
• Docket Number: No. 17756.,17756.
• Citation: 260 S.W. 785
• Parties: SPITZBARTH v. SPITZBARTH
• Court: Missouri Court of Appeals

260 S.W. 785

SPITZBARTH v. SPITZBARTH

No. 17756.

St. Louis Court of Appeals, Missouri.

April 1, 1924.

Appeal from St. Louis Circuit Court; Franklin Ferris, Judge.

"Not to be officially published."

Suit for divorce by Anna J. Spitzbarth against Charles Spitzbarth, in which defendant filed a cross-bill. From the judgment, dismissing petition and cross-bill, plaintiff appeals. Reversed and remanded.

Louis Balbach and John A. Gilliam, both of St. Louis, for appellant.

Julius T. Muench, of S. Louis, for respondent.

BRUERE, C.

This is a suit for divorce, brought by the wife on the ground of indignities alleged to have rendered her condition intolerable. The answer and cross-bill denies the charges of indignities set up in the petition, and in turn charges the plaintiff with intolerable indignities. The trial court, after hearing the evidence, dismissed the petition and cross-bill, and the wife has appealed.

The indignities charged in the petition, and relied on as ground for divorce, are that defendant was of a quarrelsome and faultfinding disposition; that he was constantly disagreeing with and nagging at the plaintiff; that he had an ungovernable and uncontrolable temper; that he used vile and obscene language towards the plaintiff; that on numerous occasions, while in spells of anger, he ordered the plaintiff out of their home; that at the time of the birth of the child born of the marriage, and during the time plaintiff was confined to her bed, the neglected the plaintiff by leaving her alone at home and coming home drunk, thereby endangering the life of the plaintiff and their child; and that defendant habitually got drunk. The petition further alleges that, because of the abuse, insults, and humiliation inflicted by the defendant, the plaintiff was forced to leave the defendant on May 13, 1919; that thereafter he begged plaintiff to return to him, and promised to treat her with kindness and affection; that, relying upon said promise, plaintiff returned to him, but was forced again to leave him on January 30, 1921, because he again subjected her to the indignities hereinbefore stated. The petition also asks for the custody of the child born of the marriage, and for support and maintenance.

The defendant, in his cross-bill,. charges that his wife was of a quarrelsome, nagging, and fault-finding disposition; that she had violent and ungovernable temper; that she constantly and continuously, during the time they lived together, scolded, denounced, upbraided, and cursed defendant; that she, for a long time after their marriage insisted on spending a large part of her time at her former home, to the neglect of her own home and of the defendant's comfort; that on several occasions she told defendant she hated him and the very ground he walked on; that she refused to prepare defendant's breakfast; that she was lazy and disinclined to perform her household duties; that she denied defendant his marital rights for weeks at a time; that she had an abortion performed on herself, over defendant's protest; that on one occasion she threatened to stab defendant with a butcher knife; that she left defendant's home on May 13, 1919, without any just cause or provocation, and returned May 25, 1919; that she again left defendant on January 30, 1921, and took with her their minor child; and that she refused to return, although repeatedly requested to do so by the defendant.

The defendant, not having appealed, cannot complain of the action of the trial court in dismissing his cross-bill, and it is very evident to us that said action was proper under the evidence adduced.

The only question presented for consideration is the correctness of the trial court's ruling in dismissing plaintiff's petition. The parties were married in August, 1918, and cohabitated together as husband and wife until May 13, 1919, when the...