Tootle v. Tootle, 22962
| Decision Date | 05 October 1959 |
| Docket Number | No. 22962,22962 |
| Parties | Jack TOOTLE, Plaintiff-Respondent, v. Winifred W. TOOTLE, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Wm. Coleman Branton, Kansas City, Joseph K. Houts, St. Joseph, for appellant.
Strop & Strop, St. Joseph, for respondent.
This is an appeal by the defendant, Winifred W. Tootle, from a decree granting plaintiff, Jack Tootle, a divorce and the custody of the parties two children, a daughter born February 14, 1950, and a son born February 16, 1954, but granting defendant 'reasonable rights of visitation.'
Plaintiff filed his suit on January 15, 1958. He charged in his petition (a) that the defendant committed adultery since the marriage, and (b) that defendant had rendered indignities to him which included, among others, improper association with another man. He further charged that the defendant was unfit to assume and continue the proper control, care and custody of the minor children. Defendant's answer admitted the marriage of the parties, the jurisdictional residence of the plaintiff; the birth of the children, and denied all the charges against her made by the plaintiff, except the charge of adultery alleged in plaintiff's petition and except that part of the indignities charged against her that she had, during the marriage, improperly associated with another man.
Defendant's answer then asserted defenses of alleged condonation and recrimination and asserted a cross bill for divorce and custody of the minor children on the same charges set forth in her asserted defense of recrimination.
Defendant, in her pleadings, charged that plaintiff insisted that she habitually and continuously open their home to the plaintiff's mother and step-father; permitted constant visitation by them and required the defendant to take care of their needs; permitted his mother to arrange the furniture and furnishings of their home; that his love of his mother and step-father were his first consideration and concern; that plaintiff was unresponsive toward her and failed to show love and affection for her; that he permitted his mother and step-father to dominate and control his business and affairs and by acquiescing made plaintiff and defendant financially dependent upon his mother, step-father and grandfather; that because of such financial dependence upon his mother, step-father and grandfather, plaintiff insisted upon and directed her to comply with their wishes; that plaintiff was indifferent to her, her interests and welfare and did nothing to stop, but encouraged, the prolonged, unwarranted interference with the marriage, which was detrimental to her physical health and emotional stability.
The evidence disclosed that plaintiff was born Jack Tootle Young at Colorado Springs on December 21, 1917, the son of Otis G. Young and Katherine Tootle Young, who is the daughter of John J. Tootle. Plaintiff's father died when plaintiff was a baby. When plaintiff was seven or eight years old his mother married Stanley Birdsall. Mr. Birdsall is now President of the Tootle Dry Goods Company of St. Joseph. Mr. and Mrs. Birdsall and the plaintiff moved to St. Joseph in 1928 and went to live at 802 Hall Street with plaintiff's grandfather, John J. Tootle, at which place the Birdsalls have ever since made their home. In 1939 plaintiff legally changed his name to Jack Tootle. He did this because of the years of past usage of that name extending back to the time he attended Culver Military Academy, Gulfport Military Academy and the Missouri University, at each of which places he went by the name of Jack Tootle.
The parties met at Mackinac Island, Michigan, where each of them had vacationed with their respective families during the summer months since childhood. They were married on June 30, 1945, at Grosse Point, Michigan, the home of the bride's mother. At that time Jack and Winifred Tootle were 27 and 19 years of age, respectively.
After their honeymoon, Jack and his bride came to St. Joseph and first stayed with Mr. and Mrs. Birdsall and John J. Tootle at the Hall Street address. Prior to his marriage Jack had purchased from his grandfather a small house located at 2401 Faraon Street. This house was purchased during the war period when housing was scarce. It was badly in need of repairs and was not ready for occupancy until December, 1945. The parties lived in this house about eight years. In December 1953, they moved into their new home at 2728 Francis Street.
After the Tootles moved to their new home, Dr. Wachter, a pediatrician, married and the father of three children, moved with his family to a home just two blocks away from the Tootle home. Defendant not only knew that Wachter was married, but also knew that he had three children. Because of Cerebral Palsy activities of Wachter and defendant's new-found interest therein, and because of close home proximity, and Wachter's association in treating the Tootle children professionally, close relationships developed between the families, starting in the winter of 1956, and continuing until Easter of 1957.
On the evening of that day the Tootles had guests in their home, among whom was Wachter. Happening to walk out into the dining room, plaintiff came upon his wife and Wachter embracing and kissing each other. When plaintiff returned to the living room the other guests could see that 'he was quite upset about something.' After the guests had departed, plaintiff discussed with his wife what had taken place and she told him that she was in love with Wachter. He then said to her: The three of them talked until possibly 3:30 or 4:00 o'clock in the morning when they finally concluded that Wachter and defendant 'were not going to see each other, we were going to break off social relations as a family, he was going to stay away and so on.'
One day during the first week of the following May the defendant suddenly announced that she had to go get some dresses fitted. This occurred 'right during the noon hour' and plaintiff said 'I didn't think that was where she was going.' He knew that Wachter's normal lunch hour was from 12:30 to 1:30. This incident, coupled with the fact that defendant's attitude toward him had been 'one of growing, increasing indifference, coldness, lack of cooperation', caused plaintiff to go to his friend, Mr. O. W. Watkins, Jr., a highly respected lawyer in St. Joseph, for advice. Mr. Watkins told plaintiff that he had a man in his office who was entirely trustworthy and that he would have him make an investigation.
There is no need to go into the details of this investigation because at the trial, which lasted five and one-half days, plaintiff proved that on June 18, 1957, the defendant had been guilty of adultery with Wachter in the bedroom of plaintiff's home while the children were at home and even in the basement of plaintiff's home, during the daytime, and at night, while one or both of the children were there; also at least twice in the daytime in an automobile near Wathena, Kansas. This proof consisted of admissions defendant made in depositions introduced at the trial wherein she testified that she didn't remember how many times this occurred, either at home or near Wathena, Kansas. The transgressions of defendant were also proved by the testimony of defendant herself at the trial and by her counsel's admissions.
So we turn now to defendant's first contention: That 'the court erred in granting a divorce to Jack Tootle, because he had knowledge of his wife's adulterous conduct and condoned the same and thereafter freely cohabited with her.'
Condonation is not an absolute, but is a conditional forgiveness of marital misconduct. It is an excuse for past offenses upon the express or implied condition that the marriage vows shall thereafter be duly regarded. It is not a license for subsequent and continued violation and if a breach of a condition inherent or expressed in the condonation takes place, the original grievances as causes of divorce are at once revived (Garton v. Garton, Mo.App., 246 S.W.2d 832, 838; Noll v. Noll, Mo.App., 277 S.W.2d 853, 856; Taylor v. Taylor, Mo.App., 224 S.W.2d 412; Wirthman v. Wirthman, 225 Mo.App. 692, 39 S.W.2d 404, 408).
In the Wirthman case, supra, this court stated:
' Ratcliff v. Ratcliff, 221 Mo.App. 944, 949, 288 S.W. 794, and cases therein cited. (Italics supplied.)
After it had been reported to plaintiff that Wachter had been seen unclad in the bedroom of the Tootle home on the night of June 18, 1957, plaintiff left defendant and took the children to his parents home. He called defendant's mother in Detroit and so advised her. Defendant's mother and brother came to St. Joseph. A conference was arranged for June 23, the purpose of which was to bring about a reconciliation. Present at that conference were Jack and Winifred Tootle, Mr. Watkins and defendant's attorney. It was there agreed that (1) 'There would be no association between the Tootles and Wachters or either of them', and (2) 'Winnie and Jack from there on were going to lead an ideal marriage, they were to get along together, treat each other as they should, they were really going to start off anew.'
After the reconciliation plaintiff treated defendant with kindness and affection, saying: 'I wanted everything to be as wonderful as I could, we had our family back together, I did...
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