E v. G

• Decision Date: 03 October 1958
• Docket Number: Nos. 7702,7712,s. 7702
• Citation: 317 S.W.2d 462
• Parties: E_____, Plaintiff-Respondent, v. G_____, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 462

317 S.W.2d 462

E_____, Plaintiff-Respondent, v. G_____, Defendant-Appellant.

Nos. 7702, 7712.

Springfield Court of Appeals, Missouri.

Oct. 3, 1958.

Douglas W. Greene, Springfield, for defendant-appellant.

James H. Keet, Springfield, for plaintiff-respondent.

RUARK, Judge.

The principal case involves the custody of three girls, all of tender years. Because these children should not, in later years, be unnecessarily plastered with the mud thrown by their parents, we avoid identification of the parties. On April 24, 1954, plaintiff secured a decree of divorce from defendant and judgment for nominal alimony. At that time there were of the marriage two daughters, then ages three and one, and plaintiff was pregnant. The decree provided that jurisdiction of the named children and the unborn child was retained for the purpose of making orders touching their custody and support in the future.

On February 2, 1957, defendant husband, now appellant, filed motion to modify. This motion set up the fact that the third child, also a daughter, had been born; charged that since the divorce the wife had habitually conducted herself improperly by having degrading associations with 'other' men; and the prayer was for award of custody to defendant father or, in the alternative, to the paternal grandparents. The answer denied the charges of misconduct on the part of the mother, charged that the father had made continuing attempts to wean the children from the wife, was of unsuitable temperament to have custody, and was not so situated as to be able to care for the children properly. Such answer prayed for award of custody to the plaintiff mother.

These people apparently had their origin in a small town not too far distant from a fairly large city. The record does not show their ages, but the evidence indicates that both of them are young, with plaintiff probably in her twenties. Both maternal and paternal grandparents live in the town of origin. At all times here concerned it appears that defendant was and is steadily and regularly employed as an electrician in the city, and his income is approximately $100 per week. It appears that at the time the original decree was rendered the two then living children were in the physical custody of the paternal grandparents.

After the divorce in April plaintiff went to the city and until August 1954 stayed in the YWCA and attended business school. The baby, another girl, was born in October. (Incidentally, this child suffers from a heart defect, has been hospitalized several times, and requires medical care.) At some time in the late summer or fall of 1954 it appears that the parties went back (without benefit of clergy) and lived together in the city for approximately a year. Plaintiff then left this arrangement, took the children, and went to the maternal grandparents. Several weeks later she left her parents' home and lived at several places in the city and for a short period in the state of Texas, where she had employment. During most of this interval the two older girls stayed in the home of the paternal grandparents and the baby was under the care of the maternal grandparents. In May 1956 occurred the abortion or the kidney stone incident (whichever it was) which we will mention hereafter.

In June of 1956 plaintiff and defendant entered into an arrangement whereby defendant provided a home in the city for plaintiff and the children, he to pay the household expenses and she to care for the children, prepare defendant's meals, and do his laundry. Defendant was to have sleeping quarters elsewhere. In short, as plaintiff put it, it was 'just as if we were married except he wouldn't be living there.' Within a few weeks and against defendant's wishes, as he contends, but by reason of financial necessity, as plaintiff contends, the plaintiff took a job at which she worked, for the first six weeks during the day, and after that at night. After plaintiff began work, both parties contributed to the household expenses. During this period plaintiff kept the children in the daytime and defendant stayed with them at night while plaintiff was at work. In November 1956 plaintiff employed a baby-sitter and took in another woman, a fellow employee, to live with her, an arrangement to which defendant objected.

In January 1957 the 'arrangement' broke up. The immediate cause appears to have been a quarrel which was occasioned because a man with whom plaintiff had gone out previously (and one who defendant claims was involved in the alleged abortion incident) returned to the city and plaintiff commenced seeing him again. The upshot of this quarrel was that defendant announced he was (forcibly) taking the children away from plaintiff and to his parents' home. Plaintiff testified that she objected most strenuously to his taking the baby, because the night was cold and she did not want the child to be outside. The result was a charge of assault against defendant in city court (of which he was later acquitted); but defendant had the children, at his mother's house, and later he had plaintiff evicted from the city house and moved in himself. About this time plaintiff took another job in the city, where she worked from 1:00 a. m. to 7:00 a. m., and she was still so employed at the time of trial.

Up to this time there is no doubt that the defendant had some character of affection (physical or otherwise) for the plaintiff. It is doubtful that the attraction was mutual. At one point plaintiff testified that the sexual relations in the marriage had been 'unsatisfactory.' Plaintiff testified that on several occasions after the divorce defendant forced sexual relations upon her. The incident of a torn-up room and bruises on the plaintiff and scratches upon defendant on one occasion tend in some measure to verify this accusation. Plaintiff's evidence would indicate that defendant was unreasonably jealous and did not wish her, although divorced, to associate with other men. Defendant's testimony, on the other hand, would tend to prove that plaintiff was leaving the children uncared for on numerous occasions in order to run about at night.

The defendant was remarried on August 8, 1957, pending the hearing of this case below.

Defendant's charges of plaintiff's unfitness: One of the most serious charges made by the defendant is that in May 1956 plaintiff became pregnant by another man, one J., the same man over whom they had the quarrel which preceded the last separation. According to defendant's testimony, he loaned money to plaintiff and to J. to pay the expenses of an abortion. He said that he took her to the doctor to have the abortion performed. He also said that the January quarrel (the one which resulted in the last separation) arose because J. returned to town and called on the plaintiff; that he demanded repayment of this loan and that J. refused repayment at the urging of the plaintiff. All this (concerning the abortion) the plaintiff denied. She denied having had sexual relations other than those forced upon her by her ex-husband or having been pregnant since the birth of her third child. She testified that she did go to a doctor, but for treatment of what was first diagnosed as kidney stones and later as an intestinal block.

Defendant also testified that on another occasion, a few months after the 'abortion-kidney stone incident' and while the parties were proceeding under the 'arrangement,' he came in the house at night and found plaintiff in bed, unclothed, with yet another man. This also plaintiff denied. While she admitted that the other man was present, and identified him as a friend who had brought medicine for her and the children, she denied being in bed with, or any improper conduct with, the visitor.

Defendant also testified that plaintiff had dates and went out almost every night and 'never would stay home.' On the other hand, plaintiff's testimony was that for a period of three months, before the commencement of the last 'arrangement,' she did go out, but defendant 'threw such a fit' that she refrained from dating until she again began going out with J. (the man because of whom the final quarrel arose) in January 1957. She said that she has not dated since March 1957, but admitted that upon several occasions she has gone out dancing with a group to various taverns, her participation in those parties always ending by 12:30 because she goes to work at 1:00 a. m. She produced some evidence that she seldom goes out, but stays at home and sews.

Defendant produced evidence that plaintiff was evicted from two apartments in the city, once on the complaint of other tenants who were disturbed by activities in the nighttime. Plaintiff denied one eviction and her explanation of the other is that this was before the final 'arrangement' was entered into; that defendant was beseeching her to remarry him and that he came to her apartment day and night. Defendant denied that he called at the apartment with such frequency but said he came only about twice a week, and then only to see that she had everything she needed.

Plaintiff's charges of defendant's unfitness: Plaintiff testified that the defendant was given to moods of despondency and depression; that he sometimes had severe headaches and crying spells; that on one occasion he locked himself in the bathroom and threatened to kill himself and finally lay crying on the floor. She also testified that defendant's present wife told her that she and her family feared that defendant was 'on the verge of a crack-up.' Introduced in evidence was a rather long letter which defendant wrote to plaintiff and which plaintiff says he handed to her shortly before the final break-up in January of 1957. Without setting forth this letter in detail, we may say that it could well be argued that it indicated some incoherence and emotional instability. In the reverse, defendant testified that he is in good health and that he never loses time from work,...