Wirthman v. Wirthman

• Decision Date: 25 May 1931
• Docket Number: No. 17211.,17211.
• Citation: 39 S.W.2d 404
• Parties: JAMES A. WIRTHMAN, RESPONDENT, v. ELLA E. WIRTHMAN, APPELLANT.
• Court: Missouri Court of Appeals

39 S.W.2d 404

JAMES A. WIRTHMAN, RESPONDENT, v. ELLA E. WIRTHMAN, APPELLANT.

No. 17211.

Kansas City Court of Appeals. Missouri.

Opinion filed May 25, 1931.

Appeal from the Circuit Court of Jackson County. — Hon. Allen C. Southern, Judge.

AFFIRMED.

Hume & Smith, Fenton Hume and Carlin Smith for respondent.

Daniel E. Bird and Robt. M. Murray for appellant.

ARNOLD, J.

This is an action for divorce. A decree for plaintiff was entered after defendant's demurrer to plaintiff's evidence was overruled. Defendant stood on her demurrer.

Briefly stated, the facts of record are that plaintiff is sixty-one years of age and defendant thirty-nine. Defendant is a niece of plaintiff's first wife and for a time lived in plaintiff's home before the death of his first wife. The parties were married May 7, 1919, and lived together as husband and wife until October 22, 1929, at which time plaintiff left his home and instituted this suit in the circuit court of Jackson County, Missouri. Defendant filed answer to the petition and later filed an amended answer and cross-petition. The cause was tried ond the pleadings thus made.

The petition is formal, alleges plaintiff is a resident of Kansas City, Jackson County, Missouri, and has resided within the State of Missouri more than one whole year next before filing said petition; that plaintiff and defendant were lawfully married at Kansas City, Kansas, on May 7, 1919, and continued to live together, except at intervals, from and after their marriage until on or about October 22, 1929; that plaintiff faithfully demeaned himself and discharged all his duties as the husband of defendant, and treated her with kindness and affection; that defendant disregarded and violated the marriage relation and offered to plaintiff such indignities as to render his condition intolerable, in that defendant is possessed of an ungovernable temper and upon the slightest provocation gave vent thereto, both in the home and in public; that without justification or cause defendant is, and has been, jealous of plaintiff, manifesting such jealousy at home and in public, thereby making life impossible and unendurable to plaintiff; that she habitually criticized, nagged and found fault with him and his actions toward her without justification, and by reason thereof plaintiff has been unable to please her; that plaintiff's conduct toward Eugene Wirthman, plaintiff's child by his former marriage, was highly disrespectful; that she often cast remarks reflecting on his character, such conduct being so abusive, disrespectful and of such a character as to render his son unwelcome in the home and eventually forcing him to leave; that defendant at all times displayed a hostile and unwelcome attitude toward all of plaintiff's relatives, thereby making them unwelcome visitors in his home; that defendant often demanded that plaintiff vacate and leave the home; in her numerous fits of rage and temper defendant became hysterical, rendered herself obnoxious to the neighbors and as a consequence compelled plaintiff to change his residence; that on such occasions defendant threatened the life of plaintiff; said conduct and treatment not only destroyed the peace, harmony and quietude of the home, but tended to shatter the nerves of plaintiff and caused him to be driven from home on numerous occasions; that plaintiff's life was rendered unbearable aand he was eventually forced to leave his home on October —, 1929, since which time plaintiff and defendant have been living separate and apart; that during said marriage relation, at divers times, defendant secretly and clandestinely communicated with other men and often met men outside the home, and at such times was guilty of conduct highly improper as a wife. The petition further states no issue was born of this marriage and that the offenses therein complained of arose and were committed in the State of Missouri and while both parties resided therein. The prayer is for a decree of divorce and such other and further relief as to the court may seem meet and proper.

The answer admits the marriage, as pleaded in the petition, that the parties continued to live together as husband and wife and that no child was born to said union. Excepting these admissions, the answer is a general denial. Later an amended answer was filed, making admissions as in the first and generally denying as therein stated. A cross-petition also was duly filed alleging and admitting matters set out in the answer and alleging defendant faithfully demeaned herself and discharged all her duties as the wife of plaintiff, but that plaintiff, disregarding his duties as the husband of defendant, offered her such indignities as to render her condition intolerable; that plaintiff is possessed of a violent and ungovernable temper and has continually exhibited evidences of the same, and has cursed and humiliated defendant, both privately and in the presence of plaintiff's son and guests in their home; on frequent occasions he has struck and beaten defendant with his fists, pieces of furniture and other objects; abused and threatened her until she was obliged to undergo treatment by a physician therefor; that for a number of years plaintiff and his son have openly pursued a course of abusive and discourteous treatment of defendant for the purpose of making her life so miserable she would be obliged to separate from plaintiff; that plaintiff has stated on numerous occasions that both he and his son would continue such conduct until they either drove defendant away from the home or caused her to become insane; plaintiff, on numerous occasions, has allowed his son, in plaintiff's presence, to speak disrespectfully to defendant and curse and order her out of the house, to her embarrassment and humiliation; plaintiff, for a long time, has refused to provide defendant with sufficient means to properly clothe herself and has given her only sufficient money to maintain her existence and has stated he would continue this course and would dispose of all the property and conceal it so that eventually defendant would be unable to obtain any support from him; that on a number of occasions, plaintiff, by threats and abuse, has forced defendant to execute deeds jointly with him, conveying property to his son, without consideration; on such occasions plaintiff refused to tell defendant what properties were being transferred and for what purpose; plaintiff has continually threatened to do violence to defendant and on one occasion brought her a drink from a drug store which poisoned her and made her violently sick; defendant is informed and believes some substance was put in said drink by plaintiff to cause her harm; following out his system of embarrassing and terrorizing defendant, plaintiff has employed numerous people to watch her and follow her and attempt to make engagements with her away from home so that he could photograph her with them, and on one occasion employed one Lillian B. White as housekeeper in their home, against the wishes and desires of defendant, for the purpose of spying on defendant and attempting to gather some evidence upon which to base action for divorce; on various occasions, plaintiff left their home and stayed away for a month or six weeks at a time without informing defendant of his whereabouts and without explaining why he was away; during their married life plaintiff has associated and kept company with other women and has frequented places where liquor was sold and drunk liquor with other women, and in other ways conducted himself unbecoming a gentlemen; has frequently and continuously told defendant she was ignorant and unfit to be his wife; that he did not love her nor care for her; that he has urged her, on many occasions, to sue for divorce and threatened her is she did not do so; because of her refusal to comply with this demand plaintiff has struck her with his fist, chairs and other articles, causing her face and nose to bleed and causing bruises on her arms and body; on some occasions he has taken weapons to bed with him and kept them under his pillow in order to keep defendant in a constant state of fear and apprehension; plaintiff has told their friends and acquaintances that defendant was insane, thus embarrassing and humiliating defendant; that by reason of the foregoing acts, conduct and treatment, defendant's life has been made miserable and her health impaired; by his constant campaign of spreading poisonous remarks about defendant, plaintiff has ruined her friendship with a great number of people and impaired her reputation and made her life with plaintiff impossible. Defendant states she is now and has been a resident of Kansas City, Jackson County, Mo., for more than one whole year last before filing this amended answer and cross-petition. The cross-petition alleges plaintiff is possessed of considerable property and income, the value of which is to defendant unknown; that the property held in the name of plaintiff and others for him is reasonably worth $250,000. The prayer is for a divorce, permanent alimony, attorney fees, expenses of prosecuting this defense and costs. Plaintiff's answer to the cross-petition was a general denial.

The cause was tried upon the pleadings thus made, resulting in a decree for plaintiff. Motions for new trial and in arrest were overruled and defendant has appealed. Later, motions for temporary alimony and attorney fees, duly filed,...