Straley v. Straley

• Decision Date: 27 June 1927
• Parties: HENRIETTA STRALEY, RESPONDENT, v. JOHN STRALEY, APPELLANT. [*]
• Court: Kansas Court of Appeals

298 S.W. 110

221 Mo.App. 1136

HENRIETTA STRALEY, RESPONDENT, v. JOHN STRALEY, APPELLANT. ^[*]

Court of Appeals of Missouri, Kansas City

June 27, 1927

Appeal from the Circuit Court of Jackson County.--Hon. E. E Porterfield, Judge.

Judgment reversed.

Fred W Klaber, James H. Anderson and J. B. McGilvray for respondent.

Sebree Jost & Sebree and M. M. Bogie for appellant.

BLAND, J. Arnold, J., concurs. Trimble, P. J., absent.

OPINION

BLAND, J

This is a suit for divorce. The court granted plaintiff a divorce and the custody of the minor child born of the marriage, gave defendant the privilege of seeing the child on stated occasions and adjudged that defendant pay plaintiff $ 30 per month for the support and maintenance of the child. Defendant has appealed.

The facts show that defendant first met plaintiff on July 1, 1918, while he was in France in the service of the United States Post Office Department during the late war. On the day mentioned he went to board with plaintiff's mother, Madame Creasy. Plaintiff and her mother resided together; they were French women, the former being the only child of the latter. When he met plaintiff she was introduced to him under the name of Mademoiselle Creasy, indicating that she was a single woman. Before long he began paying court to her, culminating in his proposing marriage. Plaintiff then for the first time told him that she was not free to marry; that she had a husband from whom she was separated; that her husband had filed a suit for divorce from her in 1913 but that the trial had been delayed on account of the war; that she was opposed on religious grounds to the divorce but had been willing to consent to a separation. However, after defendant proposed to her she was willing to be divorced in order to marry him and they agreed to be married when the divorce was procured. Defendant lived at Madam Creasy's about five or six months and for about two months after he had proposed to plaintiff. He was then transferred to some other part of France but kept in communication with plaintiff. After the war plaintiff's husband came back to France and secured an absolute divorce. During the time her husband was separated from plaintiff he paid her as alimony eighty francs per month. Plaintiff cabled defendant, who was then in this country, of the divorce, resulting in plaintiff and Madam Creasy's coming to New York as had been planned. It had been agreed that Madam Creasy was to live with the parties after their marriage. Defendant met plaintiff and her mother in New York and they were married on June 28, 1920, at Greensburg, Pa., at the home of a friend. After the marriage they came to Kansas City and shortly thereafter defendant purchased a home in that city where the parties and Madam Creasy lived until the separation.

Plaintiff testified that defendant became "grouchy" and mistreated her "right at the beginning of our married life;" that he did not show the interest in her that a husband should. She attributed his lack of interest and affection for her largely to what was disclosed to her by defendant on the day of the marriage. In reference to this, plaintiff testified that defendant told her that "he was very sorry for me, that he was not like other men;" that "he had a kind of paralysis" and for several years had spent money trying to cure his condition and had improved. She testified that customarily he had difficulty in effecting his desire to have sexual intercourse with her; that during the first year he was successful in his efforts in this respect about once a month; that her child, a daughter, was born between nine and ten months after the marriage; that he ceased to have intercourse with her two months before the child was born and resumed such relation about four months afterwards; that he quit having sexual intercourse with her entirely about six or eight months after the child was born. She testified that they had no trouble the first year but had their first difficulty in the year 1921; that at that time she had found some obscene postal cards in defendant's trunk and had burned them because she was expecting a child to be born and did not want the child to see them as she did not think they were fit for a child to look upon; that she told her husband that she had destroyed the cards and he became angry and struck her with his fist; that she did not remember the second time he struck her but that he struck her in the year 1922 very often; that she never struck back at him; that at one time when defendant was playing with the baby she thought he was not sufficiently clothed and asked him "to be more decent" in front of the child and for this he struck her. She testified that she never struck defendant but that she defended herself once or twice by pushing him away; that she never refused to permit him to have intercourse with her or to caress her; that he did not ask her and she did not think it her place to ask him; that "if he would talk to me it would never be pleasant, he would call me a bitch or something like that . . . dirty, filthy bitch;" that after the baby was born her husband procured something from the drug store for plaintiff to use to prevent conception; that in the spring of 1922 she ceased sleeping with her husband and moved downstairs into the dining room where she continued to sleep and never again slept with or "cohabited" with him because "he did not ask me to;" that--

"For ten months I lived with my husband in the same bed like brother and sister and my husband never said a word of affection to me and never asked me anything, and I felt summer was coming and we were burning up, we have no attic to the house and our room is very warm. I felt my little daughter was suffering too much and I was not of any use to my husband, so I decided to come downstairs.

"I never wanted my husband to give up his room upstairs and move downstairs, that is, I never did say that to him."

That defendant brought the bed downstairs and she never went back upstairs because he did not ask her to.

During their married life defendant was employed at the post office in Kansas City and received a salary of $ 150 per month, $ 140 of which he turned over to his wife for the purpose of running the household and making payments upon the house. Plaintiff testified that in July, 1923, she complained to the Board of Public Welfare because he had refused to give her any money one month and the grocer, butcher, milkman, etc., had refused to make any more deliveries of food on account of the fact that they were not paid; that she asked defendant a number of times for the money and he would not answer her or even tell her that he would not give it to her, so she finally went to the Welfare Board for help; that the agent of the Welfare Board sent for defendant; that plaintiff and defendant met there and defendant stated to the agent that the reason he refused to give his wife money was because she would not "cohabit" with him; that she asked defendant if he had ever asked her to have sexual intercourse with her and at first he did not answer but that afterwards said he had not; that defendant admitted during the interview that he had struck her; that the agent of the Welfare Board advised them to go back home and begin married life anew; that they both agreed to do this but defendant never thereafter asked her to have sexual intercourse with him and she went back to the agent and inquired of him "if in America it was the way for a woman to ask her husband" and the agent replied, "No." At another place in her testimony she stated that she went to the Welfare Board after defendant had refused to give her one-half of his salary and that it was impossible for her to get along with one-half of it and pay the bills and that she refused the one-half of it because he would not give it all to her.

Plaintiff testified that the evening after she returned home from the meeting at the Welfare Board, after supper, she went upstairs and told defendant goodnight as he had requested her to do, but that he was reading and would not look at her; that she continued this for about a week but that "he would not say a kind word to me or look at me;" that she then thought she could say goodnight as well downstairs and "I didn't do it any more and he did not ask me to do so;" that after the meeting at the Welfare Board defendant's treatment of her was worse and he struck her more often; that he would not answer when she talked to him; that he would not take her to places of amusement and had taken her to a picture show but twice in four and a-half years.

The trial was had on February 9, 1925, and plaintiff testified that during the "past three years" we have not talked to each other at all because I got tired of talking and never having an answer;" that defendant would "talk more in front of somebody else." At one place in her testimony she stated that after the meeting at the Welfare Board "he did not speak;" that after this meeting in July, 1923, defendant gave her $ 50 a month, out of which she had to pay all the bills except the payments on the house, the electricity and water; that defendant would not fix anything about the house that she began teaching French at the Sunset High School in February, 1922, and it became necessary for her to pay some of the household expenses out of her salary; that during the first year of her teaching she received $ 50 per month and afterwards $ 100 per month salary; that she also obtained work in tutoring during the summer holidays for which she charged $ 2 per hour. She testified that during the last year they lived together defendant stayed out late at night two or three times a week--"Before I went to the City Hall he was staying out at night very often....