Taylor v. Taylor
Decision Date | 02 November 1949 |
Docket Number | No. 6836.,6836. |
Citation | 224 S.W.2d 412 |
Parties | TAYLOR v. TAYLOR. |
Court | Missouri Court of Appeals |
Robert Stemmons, Mt. Vernon, Hendren & Andrae, Jefferson City, for appellant.
Charles E. Ginn, Aurora, Charles A. Moon, Springfield, for respondent.
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:
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 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:
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:
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:
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: 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:
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