Taylor v. Taylor, No. 6836.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtMcDowell
Citation224 S.W.2d 412
PartiesTAYLOR v. TAYLOR.
Decision Date02 November 1949
Docket NumberNo. 6836.
224 S.W.2d 412
TAYLOR
v.
TAYLOR.
No. 6836.
Springfield Court of Appeals. Missouri.
November 2, 1949.

[224 S.W.2d 413]

"Not to be published in State Reports".

Robert Stemmons, Mt. Vernon, Hendren & Andrae, Jefferson City, for appellant.

Charles E. Ginn, Aurora, Charles A. Moon, Springfield, for respondent.

McDOWELL, Judge.


This is an action for divorce and custody of minor child, filed in the Circuit Court of Lawrence County, Missouri, on the 11th day of August, 1948. On the 5th day of October, 1948, the cause was tried and plaintiff was granted a divorce and custody of minor child. From this judgment defendant appealed to this court.

Plaintiff's first amended petition is as follows:

"1. Plaintiff states that on the 22nd day of August, 1947, he was lawfully married to the defendant; that plaintiff continued to live with the defendant as her husband from and after the day and year aforesaid until August 11th, 1948; that during all of that time plaintiff faithfully demeaned himself and discharged all of his duties as the husband of the defendant, and at all times treated her with kindness and affection, but the said defendant, wholly disregarding her duties as the wife of plaintiff, offered to him such indignities as to render his condition in life intolerable in this to wit: That defendant constantly nagged and quarreled at plaintiff without just cause, and in general conducted herself in a manner unbecoming the wife of plaintiff in this, to-wit: That on or about Christmas, 1947, defendant went to Jefferson City, Missouri, to visit her parents, and remained away from home about one month; that when she returned she had contracted a venereal disease, and was so infected at the time she arrived at home; that defendant was nasty and filthy around the house, would not bathe herself nor the baby; that she would carry fruit jars to her room up-stairs and use them to urinate in and would leave them sitting under the bed, sometimes as many as six; that she would not cook; that she would go to her room and stay there and would not come down and eat with the rest of the family; that she would not wash her own clothes or her body; that she would have fits of temper and refrain from speaking to the plaintiff for two or three days at a time, and then would only answer such questions as were directed to her; that she gave the plaintiff no love or affection, and on occasions threatened to kill plaintiff and his family and herself.

"2. Plaintiff states that there was born of the marriage one child of tender age, to-wit: Joan Taylor, an infant * * *."

The answer of the defendant admits the marriage and the birth of the infant child and admits that she contracted venereal disease, but states that she contracted it from plaintiff and denies all of the other allegations in the petition. The answer prays for the custody of the minor child.

The court found in his judgment that the plaintiff was the innocent and injured party; that he sustains a good moral character and is entitled to divorce and custody of the infant child. The court granted defendant the right to visit said child at reasonable times and places.

We will refer to appellant as defendant and respondent as plaintiff in this opinion.

Defendant relies upon two assignments of error for reversal in this case: First, that the grounds for divorce were condoned, and, second, that the minor child was of such tender age that the custody should have been granted to the mother.

The evidence shows that plaintiff and the defendant were married August 22nd, 1947, at Miller, Missouri, and separated August 11th, 1948; that plaintiff was 25 years old and his wife 20. Plaintiff testified that prior to the marriage, he knew the defendant about 16 or 18 months; that he met her in June, 1946, at which time he lived in Jefferson City and defendant lived in Cedar City, just across the river from Jefferson City; that after their marriage they made their home with plaintiff's grandparents; that his grandfather is 70 years old and his grandmother 65. Plaintiff testified that defendant knew where they were to live prior to the marriage. He testified that on the 24th day of December, 1947, defendant went to visit her parents at Cedar City and remained there until

224 S.W.2d 414

the 28th day of February, 1948; that she went home for Christmas. While defendant was visiting in Cedar City plaintiff filed suit for divorce, but testified that after he learned defendant was pregnant he dismissed his cause of action, brought her back to his home and lived with her until after the baby was born. The evidence showed that she stayed in plaintiff's home until the day that he filed this action for divorce, to-wit: August 11th, 1948, at which time plaintiff took the defendant to his sister's, who lived in the community, where she stayed all night and possibly the next day and then went with plaintiff's grandparents to her parent's home at Cedar City.

These questions were asked plaintiff and he gave the following answers:

"Q. When she went to Jefferson City to visit, were you on friendly terms then? Did she go on a friendly visit or how come her to go? A. Well, before then all this here stuff had come up * * * the way she had been treating me, or herself, wouldn't eat and went to her room and stayed; and I told her I was going to file for divorce. She didn't seem to care, so I did. At that time I didn't know she was pregnant, and she filed an answer; and then she asked me to drop it on account of being pregnant, so I did. So, that is the situation and the way I felt and she knew it too.

"Q. And you filed suit for divorce while she was gone? A. Yes, sir * * *.

"Q. After she came back in the home, how did she take care of herself so far as cleanliness? A. Same way, in fact, worse. She never done nothing then.

"Q. How did you get along? Was she agreeable and could you talk to her? A. She never hardly talked to me at all until after I went to bed a lot of days; and sometimes I never even talked at all to her. She wouldn't even stay in the room where I was.

"Q. Did you live together as husband and wife after she came from Jefferson City? A. We slept in the same bed.

"Q. Did you have sexual intercourse after that? A. No, sir.

"Q. Would she come down from her room and eat with the rest of you? A. If she felt like it, she would; if she didn't, she stayed in her own room * * *.

"Q. Did she ever make any threats against your life? * * *. A. Yes, sir; many a time, and the baby's and all the folks there in the house.

"Q. Threatened to kill them and the baby? A. And then herself, yes, sir."

Now the evidence shows that after defendant returned from Jefferson City, to-wit: March, 1948, plaintiff took her to a doctor, believing she was pregnant, to have her examined and then learned that she had venereal disease.

On cross-examination these questions and answers were asked and given:

"Q. But you took her there believing she was pregnant? Now, when it was ascertained that she had a disease, you continued to take her to the doctor to have her treated? A. Yes, sir.

"Q. And you were advised by the doctor that she was also pregnant? A. Yes, sir.

"Q. And you continued to live with her after that time? A. Yes, sir.

"Q. And sleep in the same bed with her? A. Just sleep, yes, sir.

"Q. And you did live with her until the 11th day of August, 1948? A. That's right.

"Q. Now when was this baby born? A. July 11th * * *.

"Q. And as soon as she recovered from the hospital, you brought her back home? A. Yes, sir. She was in there, I believe, eight days. * * *

"Q. You paid the hospital bill and you paid the doctor? A. Yes, sir.

"Q. And you brought her and the baby home? A. That's right."

The plaintiff testified that the child was healthy, a girl, and that he was its father. Then, on cross-examination, the following questions and answers were given:

"Q. Now, you say she was nasty and filthy around the home? A. That's right.

224 S.W.2d 415

"Q. Has she always been that way since you lived with her? A. Yes, sir.

"Q. Nasty and filthy before she went to Jefferson City? A. Yes, sir; that's how come me to first file.

"Q. And then she continued to be nasty and filthy after you went back to her? A. Yes, sir.

"Q. After you took her back? Now, you say that she would urinate in fruit jars and things like that. Did she do that before she went to Jefferson City? A. That's right * * *.

"Q. Now, you say that she threatened to kill you and your family and child. What did she say about it? A. Well, there has been many a night that she said the same thing; said if she had a gun she would kill us all."

Plaintiff testified that he drove a milk wagon and earned $90.00 a month; that he lived with his grandparents and they will assist him in taking care of the baby. He testified that his aunt, also, would assist him in taking care of the child; that she lived six miles from his place on a farm. She is a married woman and has one child eight years old.

Plaintiff testified that he had never had gonorrhea; that the same doctor who examined his wife, examined him. The doctor testified that plaintiff did not have gonorrhea and showed no evidence of ever having had a venereal disease. Prior to the marriage, plaintiff served 46 months in the navy, 44½ months being overseas and that he had an honorable discharge for good conduct.

Dr. Frank Buscher testified, in answer to a question as to the ability of the defendant to care for her child, as follows: "A. I would be willing to say it is very unlikely she could give that child adequate care." This doctor waited on her during childbirth and treated her for gonorrhea. He testified that the child was born July 11th, 1948, and is a normally healthy baby.

These questions were asked the doctor and his answers given:

"Q. And what other reasons now do you base...

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3 practice notes
  • Garton v. Garton, No. 21722
    • United States
    • Court of Appeal of Missouri (US)
    • March 3, 1952
    ...original grievances are revived. Rusche v. Rusche, supra; Ratcliff v. Ratcliff, 221 Mo.App. 944, 288 S.W. 794; Taylor v. Taylor, Mo.App., 224 S.W.2d 412; Chamberlain v. Chamberlain, Mo.App., 230 S.W.2d When all the facts and surrounding circumstances are considered, we are unwilling to say ......
  • Cass v. Pacific Fire Ins. Co., No. 21190.
    • United States
    • Court of Appeal of Missouri (US)
    • November 7, 1949
    ...and prejudice of the jury and did prejudice it and prevented a fair and impartial trial. It will be noticed that the statement complained 224 S.W.2d 412 of was unfinished and interrupted by the objection. Standing alone, the words are meaningless, except as an exhortation to the jury for a ......
  • Mayo v. Mayo, Nos. 21622
    • United States
    • Court of Appeal of Missouri (US)
    • November 5, 1951
    ...will defer largely to the findings of the trial judge where there is irreconcilable conflict in the evidence. Taylor v. Taylor, Mo.App., 224 S.W.2d 412, 416; Parks v. Cook, Mo.App., 180 S.W.2d 64. The controlling factor in arriving at our decision will be the welfare of the child, which is ......
3 cases
  • Garton v. Garton, No. 21722
    • United States
    • Court of Appeal of Missouri (US)
    • March 3, 1952
    ...original grievances are revived. Rusche v. Rusche, supra; Ratcliff v. Ratcliff, 221 Mo.App. 944, 288 S.W. 794; Taylor v. Taylor, Mo.App., 224 S.W.2d 412; Chamberlain v. Chamberlain, Mo.App., 230 S.W.2d When all the facts and surrounding circumstances are considered, we are unwilling to say ......
  • Cass v. Pacific Fire Ins. Co., No. 21190.
    • United States
    • Court of Appeal of Missouri (US)
    • November 7, 1949
    ...and prejudice of the jury and did prejudice it and prevented a fair and impartial trial. It will be noticed that the statement complained 224 S.W.2d 412 of was unfinished and interrupted by the objection. Standing alone, the words are meaningless, except as an exhortation to the jury for a ......
  • Mayo v. Mayo, Nos. 21622
    • United States
    • Court of Appeal of Missouri (US)
    • November 5, 1951
    ...will defer largely to the findings of the trial judge where there is irreconcilable conflict in the evidence. Taylor v. Taylor, Mo.App., 224 S.W.2d 412, 416; Parks v. Cook, Mo.App., 180 S.W.2d 64. The controlling factor in arriving at our decision will be the welfare of the child, which is ......

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