author: BRADY, Commissioner. PER CURIAM.

text:
    Rufus Irven VALENTINE, Plaintiff-Respondent, v. Helen L. VALENTINE, Defendant-Appellant.
    No. 30960.
    St. Louis Court of Appeals. Missouri.
    May 15, 1962.
    Josephus M. Todd, Louis E. Zuckerman, Ellsworth W. Ginsberg, St. Louis, for appellant.
    Stemmier & Stemmier, George L. Stemmier, Frank W. Tomasso, John F. Mulligan, St. Louis, for respondent.
   BRADY, Commissioner.

The respondent, hereinafter referred to as plaintiff, filed suit • for divorce against appellant, hereinafter referred to as defendant, and the defendant filed her answer and cross-bill for separate maintenance. The trial court found against the defendant on her crossbill and for the plaintiff on his petition and awarded him a .divorce. The marriage took place on August 27, 1960, and the separation occurred on October 7th of that same year.

The plaintiff based his petition upon general indignities, and alleged that immediately following the marriage the defendant had a complete change of attitude and informed him the marriage was a mistake; that upon the date of separation defendant left the plaintiff and refused to become reconciled; that defendant had told plaintiff’s son, James, that she was going to “take his daddy to the cleaners”, and would insist upon a lump sum of $6,240.00 in order to enter into a business transaction; that James became so nervous as a result of defendant’s remarks that he had to be confined to a hospital for three days for treatment for a nervous disorder; that defendant constantly argued and quarreled with plaintiff, causing him to become extremely nervous; and that defendant boasted that she was receiving $20 per week alimony from a former husband and that she had been married on three previous occasions.

The defendant filed a denial of these allegations, and for her cross-bill for separate maintenance alleged general indignities in that plaintiff had a complete change of attitude following the marriage and informed defendant their marriage was a mistake; that on the separation date plaintiff told her to leave the home and has refused to become reconciled with her; that plaintiff told her that if she wished to live with him as his wife she would have to give up her daughter by a previous marriage; that plaintiff had often told her he married her only because he wanted a housekeeper, that he did not want a wife, and that he had never loved her and did not then love her; that plaintiff’s son had constantly threatened the life of her daughter by saying he would cut her throat while she slept and the plaintiff had full knowledge of these threats; that while making the son’s bed the defendant found a large dagger and several paring knives concealed therein; that when she moved to plaintiff’s house, he refused to let her unpack and put her clothes away; that plaintiff refused to support her although able to do so, and forced her to buy her own food; and that plaintiff had often told defendant that his children were dissatisfied with her and her daughter. These allegations were denied by the plaintiff in a responsive pleading.

Plaintiff had- two children by his deceased wife, James, and Mary Louise. James was fifteen years old at the time of trial, a student in high school and lived with his father and the defendant. Mary Louise, thirty-three years of age, is married to a man who was required by his employment to move often and at about the date of the parties’ separation, she and her husband were in the process of moving from his last station in Missouri to one in Iowa. Defendant had a daughter, Linda, who also lived with this couple during the 42 days of this marriage. At the time of trial she was fourteen years old.

The plaintiff’s evidence was given by himself, James, and a Mr. Risinger. Plaintiff testified that the reason for the separation was that defendant left the home; that he treated defendant with love and affection, supported her and provided a home for her; that “ * * * I would go to work and she would take the kids to school, and we made it O.K. I didn’t think anything was wrong, and she just moved out”; that on one occasion, before the children, she told him she had talked to her legal advisor and wanted $6,240 for six years’ alimony so that she could go into business; that the defendant used her former married name of Murrell on the telephone listing, on the gas and electric bills, and on the mailbox; that the defendant said she didn’t feel well when he discussed her unpacking, and never did unpack her clothes; that in September she stated she was dissatisfied and was going to move; that she told him she thought she had made a mistake and would rather be back like she was before the marriage; that she often told him she would “ * * * make it so hot on me I wouldn’t be able to pay”; and that “ * * * she knew everyone in this business; she knew how to go at it. I wouldn’t know what I was doing”; that she did not specify who “every one” was, but stated that * * * she had nine points again me before I even went in the courtroom, and that I wouldn’t win anyway”; that he got along fine with Linda, defendant’s daughter, and that James and Linda got along “swell.” On cross-examination, the plaintiff stated that he and Mary Louise were joint owners of two pieces of property in St. Louis, and was examined as 'to the cost and income therefrom, which testimony, in view of our disposition of this appeal, it is unnecessary to summarize here. He did testify that no one else paid anything on the Cleveland Avenue property where these parties lived; that he was contemplating this marriage when he purchased the property in July of 1960; that the defendant would call him up and tell him “ * * * the kids were making her nervous, and the kids weren’t getting along”; that “She called me one day at work, and she said, ‘Your damn kid is in the room, pouting.’ I said, ‘Wouldn’t you think that would be a good thing to do, to go in his room and be quiet?’” Plaintiff further testified that he had never asked defendant to return to his home and did not want her to; that he sees defendant now about once a week when he gives her a check; that he knew defendant had been married three times before and had a daughter before he married her; that on October 7th, Mary Louise came to visit them over the weekend; that he did not ever tell the defendant to leave his home; that Mary Louise called and said she would visit over the week-end but he did not tell defendant she had to leave so Mary Louise could have the room; that Mary Louise was not opposed to this marriage; that he had not discussed the divorce with Mary Louise prior to the 11th of October when he told her he was going to file his petition; that defendant was present when Mary Louise called to inform him of her impending visit; and that the defendant left at 9:00 on the morning of the 7th, and Mary Louise arrived at 8:00 that same night, and stayed two weeks.

James Valentine stated that he got along “O.K.” with the defendant, had slight disagreements and arguments with Linda, but they went out socially together, swimming, to dances and football games, and he was on reasonably good terms with her; that about two or three weeks after the marriage, the defendant came to a show and got Linda and James, and said she was going to move out and was looking for a house to move into; that he heard the defendant make the statement as to seeing her legal advisor and getting $6,240 to set her up in business; that defendant said “ * * * she would make it so hard on us we couldn’t pay the court costs. She was going to fight it and build up a big bill. She said at times she wasn’t going to take any furniture, or anything like that; she was going to get the alimony. She would go to court for that”; that defendant unpacked Linda’s clothes hut not her own, except for the ones she would use during the week, and when asked about it the defendant would say she was sick; and that he never saw anything happen or heard plaintiff say anything that would cause her to leave. On cross-examination James testified that before the marriage he would visit Linda and the defendant at their house, which was then a block away; that he never heard his father say he was dissatisfied with the marriage; that he did not discuss the marriage with Mary Louise hut did discuss disagreements between him and Linda; that Mary Louise writes his father often and telephones frequently, but was home only three times during the marriage and did not interfere with it; that he was on the upstairs telephone extension and heard the conversation that took place when Mary Louise called about coming for a visit on the 7th; that his sister did not say the defendant would have to leave because she needed the room; that the house has four bedrooms and there was enough room for Mary Louise without defendant leaving; that defendant had been very nice to him and treated him as a son; and that when his father saw the defendant after the separation, he and Linda would go ice-skating as they are still friendly.

The witness Risinger stated that he had known the plaintiff for about fifteen years and the defendant for two years; that on the night before the marriage defendant was talking to the witness’s wife in his presence and said that “ * * * she was afraid she was making a mistake but she was going to go ahead with it. She wasn’t sure she was ready to settle down at that time.”

The defendant testified that during the marriage she would love the plaintiff “ * * * as much as he would let me * * * ” but that “When his daughter would come home they would either quit talking completely, or the boy and he would take off and go some place. I don’t know where they went; I wouldn’t question them. Then maybe after the daughter left they wouldn’t talk, and the boy would stay in his room and wrestle and fight, and cause me trouble when I cooked.” Defendant testified she left plaintiff, and gave this explanation why she had done so:

“Yes. Three weeks before that his daughter was home that weekend. When she left that Sunday he told me to get a paper, we were going to look for a place for me to live. He couldn’t see for me and him to live together, he had been so dissatisfied with the marriage. He said it had gone as far as it could, and the children were very dissatisfied with the marriage. We looked for flats on Russell, and on Tower Grove, and all over South St. Louis. We looked at a dozen places. He complained about all the places, and talked about the places he had empty at that present time, and couldn’t figure how he could get the rent for them in the condition they were. I asked him to think it over, whatever I was doing I would do better, and whatever Linda was doing I would keep her in the room completely. When she came home from school I would keep her in the room, and when I could I would keep Jimmy out of the room. In the three weeks if his daughter wasn’t home she was on the telephone. She called us every night. She was living in Joliet, Illinois, and she always wanted to talk to her dad. Before that she would talk to me, but those last three weeks she would say, ‘This is Mary Louise, and I want to talk to Dad.’ She was always in a hurry. That particular weekend, before I left, he had a telephone call on Wednesday. I answered the phone, we were in the kitchen, and I told him it was Mary Louise. Jimmy went upstairs on the extension, Mr. Valentine answered the phone on the desk in the reception hall. He said, ‘Just a minute. I want to go and get a piece of paper.’ He told me to hang up, but I did not. I listened, and she told him to have me out of there by the 9th, Friday night, or October 7th, or she and her husband would put me out. I tried to talk to him the next morning about it. He just brushed me off, but he did tell me I would have to get a place, that his children were strictly dissatisfied, and he couldn’t keep on.”

Her further testimony was that on the day of the marriage, as they walked out of the courthouse, he took the marriage certificate from her and said, “Let’s tear it in two, because we made the biggest mistake of our lives”, and later said, “Let’s burn it. You light one end, I’ll burn the other”, and handed her matches; that two or three times a day he told her the marriage was a mistake, and told her that he did not love her and would never love anyone but his. deceased wife; that she had known plaintiff for about fourteen years and they had been going together since the last of March or first of April of 1960; that she borrowed $100 from her sister, which she put down on the house on Cleveland Avenue; that when she moved to this house, she took her furniture, but it “ * * * wasn’t good enough, so they asked me to store my furniture in the basement and attic”; that she did put her kitchen furniture in the house; that every time she would try to unpack “ * * * he would say, ‘Sis will have to go through the drawers and take my mother’s things out’ ”, that her husband asked her to wait until “ * * * she came in again * * * ” as there were old glasses in the drawers; that the plaintiff wouldn’t let her use the bedroom set she had for Linda and so she bought a new one; that with respect to supporting her, plaintiff told “ * * * ‘ my daughter she and I were too expensive, he couldn’t afford us. He would give us money and we had enough bills to eat that up. He owed everybody. I guess I was supposed to salvage enough to buy the groceries. I bought the groceries out of the Twenty Dollars Bob Murrell sends my daughter”; the defendant further testified that she drew out money of her own from time to time and offered to draw all of her money out and pay the bills if plaintiff thought that would help save the marriage as she was willing to give up everything to try to live with plaintiff and his family. With respect to Risin-ger’s testimony, she denied she had made “ * * * any remarks * * The defendant was asked if she ever told the plaintiff she wanted $6,240.00, and answered, “I don’t even know where he gets those figures. I don’t know where he got those figures. What was it he said, over a period of how many years?” Defendant further testified that plaintiff told her, “ * * ⅜ the children are the reason he is suing for divorce. He keeps telling me we don’t need a divorce, when the son is grown and we can become more reconciled as they get older, we could go on together, and I think we could.” It further appeared that plaintiff at the time of trial was giving defendant $20.00 a week, and that her doctor bill and medicine amounted to $20.00 the month of trial; that she and plaintiff were still on friendly terms, and she sees him once or twice a week or, as she stated, whenever his son would allow plaintiff to see her; that he took her shopping occasionally and bought her a dress two or three weeks before trial.

On cross-examination, defendant testified that “they” stopped her from unpacking by taking anything she put in the drawers out of them, and what she hung in the closets was taken down; that she still thinks a lot of plaintiff; that she did not know she and Mary Louise were having any trouble until plaintiff told her to move, until she heard it over the telephone, that Mary Louise was not rude, “ * * * I would call it not talking, period” ; and when asked, “Actually his daughter treated you nice?” replied, “She didn’t talk a lot. She would make her demands. I tried to meet them”; that she had never been repaid the $100.00 she paid as earnest money on the house, and had repaid her sister with her own funds, but she had received the closing costs she advanced paid back to her by the plaintiff; and that the reason the telephone, gas and electric were in the name of Murrell was that she would have had to pay a deposit to get it in the name Valentine. Upon questioning by the court, it appeared defendant was awarded the divorce in each of her previous marriages.

Linda Murrell stated that her mother seemed to give the plaintiff all the affection he would allow, and treated him “ * * * as a wife should”; that she got along well with the plaintiff, and “fairly well” with James; that she had never heard her mother make any financial demands on plaintiff or state that the marriage was a mistake; and, when asked if plaintiff contributed anything to her support, stated “Just what he gives my mother. Sometimes my food would be bought out of it.”

Defendant presents two points upon this appeal. She first urges that the evidence is insufficient to establish that the plaintiff was the innocent and injured party, and therefore the trial court erred in granting him a divorce. Her second contention is that the evidence clearly establishes that she was entitled to a decree of separate maintenance.

Insofar as the defendant’s second contention is concerned, to grant recovery of separate maintenance it must be proven that the plaintiff had not only abandoned or constructively abandoned the defendant, but that he had failed to support his wife after the abandonment, § 452.130 RSMo 1959, V.A.M.S.; Genazzi v. Genazzi, Mo. App., 343 S.W.2d 686 at [1] page 691, and cases cited. In the Genazzi case, at [2], page 692, this court also held that failure or refusal to support can be shown by proof that the htisband has failed to suitably provide for his wife, taking into consideration the manner in which she was accustomed to live, her necessities, and needs and ability to pay. This transcript clearly compels us to rule that the defendant failed to bear her burden of proof as to this issue. It follows that she was not entitled under the evidence in this case to a judgment awarding her separate maintenance.

In her brief, defendant cites and' relies upon Kistner v. Kistner, Mo.App., 89 S.W.2d 106. This record does not disclose that plaintiff in any way encouraged his children in a defiant and vindictive attitude toward defendant, nor that he failed to correct such an attitude or lack of respect. This record does not even show that plaintiff’s children had such an attitude or exhibited lack of respect toward defendant. The defendant’s own testimony as to how she got along and still gets along with James belies any such inference. Her daughter still sees the boy, as does she. They are all still on friendly terms. Certainly the only reasonable implication is that James’ relations with defendant were in fact as he described them, for if they were not, the defendant would not still associate with him nor allow her daughter to do so. Insofar as the allegations in the petition concerning James’ threats to kill Linda, and his concealing knives in his bed, are concerned, it should be pointed out that there was not one iota of testimony offered on the point by defendant or Linda. As pointed out, not only was James’ testimony as to his relationship with Linda contradictory to this allegation of defendant’s cross-bill, but so was Linda’s testimony. Defendant’s counsel urges that, because defendant made such a charge in a cross-bill to which she solemnly swore, it should be given credence. It requires no citation to recall to knowledge that pleadings do not prove themselves, except under certain specified pleading situations which are not here present.

Defendant also relies upon the conduct of Mary Louise to bring this case withm the application of what this court held in Kistner v. Kistner, supra. Again her own testimony goes a long way to refute her contention. Defendant gave no testimony that would compel the inference that plaintiff’s daughter, Mary Louise, was rebellious or contemptuous. At the most, it showed that she and the daughter did not talk together. Perhaps this was the fault of the plaintiff’s daughter, perhaps not. We cannot answer that question on the basis of this testimony, but it is unnecessary to do so. Certainly such an attitude by the plaintiff’s daughter toward the defendant falls far short of that which the testimony in Kistner disclosed. Defendant herself testified that she did not even know that she and Mary Louise were having any trouble until the telephone call. The defendant’s evidence as to what plaintiff’s daughter said over the telephone on that occasion was contradicted sharply by James’ testimony, and by that of the plaintiff. It should also be pointed out that so was every other allegation of her cross-bill, just as she contradicted in her testimony the allegations of plaintiff’s petition. What is here presented is not a case, as was Kistner v. Kistner, see 89 S.W.2d 106, 1. c. 112, where the transcript disclosed that, “It is obvious from the testimony of both plaintiff and his daughter that neither of them showed a proper consideration for defendant in her own home, and that plaintiff’s failure to correct his daughter with respect to her defiant and vindictive attitude toward defendant intensified the quarrels between the parties.” What this transcript discloses is a case where the evidence given by each party contradicts that given by the other. In such circumstances, our courts have long adhered to the language of the statute, § 510.310, subsection 4, RSMo 1959, V.A. M.S. and while recognizing our duty to review the case upon both the law and the evidence and reach our own conclusions, we are also deeply cognizant of the wisdom of the language therein that we cannot set aside a judgment of the trial court unless it is clearly erroneous, and we are to give due regard to the opportunity of the trial court to judge the credibility of the witnesses. The allegations of the petition, if substantiated by proof, stated grounds of general indignities upon which a divorce could be granted. Whether or not these allegations or any of them were substantiated by proof depended in the main, and excepting the testimony of James and the witness Risinger, upon whether the trial court believed the plaintiff or the defendant. The trial court believed the plaintiff, and under the facts here disclosed it was certainly not clearly erroneous to do so. Accordingly, the trial court’s decree of divorce was not erroneous.

The judgment of the trial court should be affirmed. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion of BRADY, C., is adopted as the opinion of the court. The judgment is affirmed.

ANDERSON, P. J., WOLFE, J., and HARRY A. HALL, Special Judge, concur.

RUDDY, J., not participating.


source: Caselaw Access Project

license: Public Domain

text:
    James F. WATERS, Plaintiff-Appellant, v. Stella WATERS, Defendant-Respondent.
    No. 30987.
    St. Louis Court of Appeals. Missouri.
    May 15, 1962.
    Hale W. Brown, Kirkwood, for appellant.
    Earl R. Blackwell, Hillsboro, for respondent.
   BRADY, Commissioner.

The appellant, hereinafter referred to as the plaintiff, filed suit for divorce alleging general indignities, and the respondent, hereinafter referred to as the defendant, filed her answer and cross-bill, also based on general indignities. The trial court found for the defendant on plaintiff’s petition, and awarded her a divorce on her cross-bill and $3,500 as alimony in gross, and costs. Plaintiff has perfected this appeal contending that the trial court erred in denying him a divorce upon his petition, in awarding the defendant a divorce, and in granting $3,500.00 alimony in gross.

The plaintiff’s amended petition alleges that the defendant did not take proper care of the home; that she “* * * is habitually addicted to intoxicating liquor and frequently becomes intoxicated * * * ”; that the defendant “ * * * habitually frequents taverns at night * * * ” when he is working; “ * * * habitually takes plaintiff’s automobile and goes to places unknown to plaintiff * * * ”; that defendant “habitually” drives plaintiff’s car when she is intoxicated, and without his permission; that she neglects the home and shows no proper affection or respect for plaintiff; and that she “apparently” married the plaintiff to get a home for herself and her fifteen-year-old son, and not “ * * * because of any affection for plaintiff.” The plaintiff also alleged as an indignity the specific occurrence of June 15th, when defendant took his car without his permission and collided with a parked car, which resulted in plaintiff’s insurance being cancelled, and that defendant deliberately misinformed plaintiff concerning this occurrence.

There is a “Count II” stated in the plaintiff’s amended petition. By the allegations thereof plaintiff contended that prior to the marriage plaintiff purchased some furniture for a total of $440.00, and that when the plaintiff and defendant separated the defendant took possession of this furniture and has retained it. It was further alleged in Count II that defendant had a $40.00 interest in this furniture, and that the plaintiff was willing to pay her this $40.00, and prayed the court “ * * * to order the defendant to account for the said articles of, furniture and to deliver possession * * * ” thereof to plaintiff upon the payment of this $40.00. This count the trial court dismissed. The appellant has not briefed any allegation of error with regard to this ruling and the question is not before us. Mathews v. Mathews, Mo.App., 337 S.W.2d 529. See also White v. Kuhnert, Mo.App., 207 S.W.2d 839; City of St. Joseph v. Hankinson, Mo., 312 S.W.2d 4.

Defendant’s answer was a denial of everything except the marriage. The general indignities alleged 'in-her cross-bill are that plaintiff left her and has refused to live with her; that he absented himself from home repeatedly without “explanation or excuse;” embarrassed her in public on the few occasions they went out together; that his attitude and disposition toward her was hostile; that he “ * * * continually engaged in unmerited bickerings and arguments * * * ” with her; that “ * * * for extended periods of time * * * ” plaintiff sulked, pouted and refused to converse with her; and that plaintiff “ * * * constantly mistreated and abused defendant’s minor son by continually criticizing * * * ” and nagging him. By his answer, the plaintiff placed these allegations in issue. Under our ruling in this case we do not reach the question of whether the trial court abused its discretion in awarding $3,500.00 gross alimony, and accordingly, the evidence bearing on that issue will not be summarized herein.

The plaintiff testified that the parties were married on either the 3rd or 4th of May, 1960, and separated on August 3rd of that year; that he “ * * * treated her as good as I could treat her. Bought everything she asked for, fixed the house up * * * ”; that this work on the house cost approximately $3,000.00; that the defendant would take his car and go into town “ * * * maybe once or twice a week. And of course, I knew she was going out but I didn’t know where she was going. She come in a drinkin’. And I got to checkin’ the speedometer. She put 8, 10 miles, 12 miles and I’d never know where she went * * * ”; that he had put down the dates of these trips and the mileage, and referring to this list testified that on Saturday, June 4th “ * * * She went to town with me”, but he didn’t put the mileage down; that on Wednesday, June 15th, she went into Festus with plaintiff and then went on to Herculaneum, an eight-mile round trip, but “ * * * She put 20 miles on the car”; that on Saturday, June 18th, she went to Festus with plaintiff and put 9.6 miles on the car; on Friday, June 24th, she came into Festus. with plaintiff but the speedometer readings he gave showed less mileage when the defendant came back than' when she left; that on Wednesday, July 13, “ * * * she went to town for groceries, she put 85 miles on the speedometer that day * * * ” and when he asked the defendant where she had been, shé said, “Well, you know when you go to town, you don’t know when you’re coming back or when you’re going.” It further appeared from his testimony that it was twenty-one miles from their home to Festus.

The plaintiff’s testimony with regard to the defendant’s drinking was that defendant drank “ * * * all the time. I took a handy 6 home practically every day, sometimes two * * * ”, and when he left home for work his wife would drive the tractor to a tavern about one and a half miles from their home and “ * * * maybe drink one or two while she’s up there * * * ”; that he' found defendant in an intoxicated condition on a half a dozen occasions during the three months they were married; that when defendant was drinking she would want to argue with him but he wouldn’t do so and would “ * * * just get up and walk off”; and that these arguments were about a door or window that wouldn’t shut right, “ * * * or this was wrong or something.”

With regard to the allegations in his petition dealing with his wife’s neglect of the home, plaintiff testified that “ * * * she didn’t do too good taking care of the home. Naturally, she slept ’till 11, 12 o’clock in the days * * * ”: that part of the time she cleaned up the house and part of the time she did not; that he came in about 1:30 at night from work, and “ * * * part of the time I had a meal when I came in, and part of the time I didn’t * * * ”; that when he came in, “ * * * She was always in bed. She never asked me if I wanted anything * * * ” but would argue with him “ * * * a couple of times ’cause I’d wake her up, turn the light on, you know, make a little noise or something.”

With regard to the occasion which he alleged led to cancellation of his insurance, the plaintiff testified defendant went to Herculaneum to put a wreath on her husband’s grave and when she returned he asked her who hit her or what happened, and she told him “ * * * she hit a post at the cemetary * * * ”; and that nine days later it developed that she had hit a parked car, and the owner thereof came to see him, and “ * * * they cancelled my insurance.”

With respect to the wreck defendant had with the car, it developed that, the damage done was that. a headlight was broken and a fender bent and the cost of repairs was $16.00. It also developed that the week before that occurrence plaintiff had had a wreck doing some $50.00 worth of damage, and when questioned further the plaintiff abandoned the other allegations Concerning the wreck but repeated that his wife should have told him what happened.

On cross-examination, he testified that he and the defendant met about a year before the marriage; that the first time he proposed, she accepted but later “ * * * turned me down and went with another fella * * * ” ; that when they started going together again he proposed and said he would marry her “ * * * if she’d straighten up — -when I mean, and wouldn’t go out to these taverns. I didn’t want her to go out unless I was with her”; that he did not know she went to taverns, but when she came back with the mileage on the car “ * * * she’d be drinking * * that “* * * I wasn’t stopping her from drinking * * * ” but. he did not want her “ * * * to go out and drink unless I was with her * * * ”; that he drinks beer and whiskey “once in a while”; and that “ * * * I knew she drank. I drank with her when- we was going together. We’d go out and have a few beers, maybe to her sister’s or inay-be to a place where she .was' a working, Alta’s, out on the CC Highway,. .1 have no objection- — -what I mean, but I didn’t figure it was right to go out and get drunk and driving cars drunk; and she'd’ come up * * When asked if he ever saw the defendant anywhere drinking, he stated, “ * * * I didn’t see her. That’s what I say, she’d go to the places, I never know — she’d never tell me where she went. When she’d come in, she’d he a drinking.” At another point in the testimony, when asked again why he wanted this ■divorce, plaintiff stated, “Because she •drank. She’d go out and drink and put the miles on the car and come in drinking”, •and that it was “Her drinking and going ■out” that caused him to want a divorce. Plaintiff admitted he never asked anyone else where she went or if she drank, that “Well, I just — I know she went out. I didn’t know where she went. I knew she put the miles on the car and shejd come in drinking.”

It further appeared from his testimony that defendant’s son was the subject of some contention between these parties, the plaintiff testified that he planted eight acres of corn and that this boy helped one day, and also spent one day helping to get in the hay; that he asked the boy to do different little things and when the defendant’s son refused, he’d ask the defendant why, “ * * * and she’d say, Well, he’s just a kid,’ or ‘He don’t know how,’ or ‘Maybe don’t want to be a farmer.’ ” Plaintiff agreed that the boy had never lived on a farm before.

It also appeared from cross-examination of plaintiff that defendant had “ * * * helped a little * * * ” with the remodeling of the house.

Plaintiff testified that when he told the defendant he wanted a divorce, she asked him why, and that she had never said she wanted a divorce; that he left her out at the farm because his lawyer told him they couldn’t both sleep there and she wouldn’t leave; that he took the car but she had the tractor, and her son had an automobile; and that he has never supplied any support since the separation.

Other evidence on plaintiff’s behalf was given by Miles Reed, Charles Edward Shannon, Elwin Frazer, and Jake La Mure. The testimony given by La Mure, Frazer, and Reed went only to establish the plaintiff’s reputation for, as the question was put, “ * * * truth, morality, good citizenship, veracity.” Shannon also testified on this point and in addition testified that on three or four occasions during the summer these parties were married, he had seen the defendant at this cafe or tavern near their home, and that she would “ ⅜ * * get her a handy 6 of beer and take it back with her. * * * ” On cross-examination this witness testified that he never saw her “ * * * conduct herself in any manner as to be uncoming or befitting a woman.”

The plaintiff also produced his grandson, Terry Lee Larimore, age 13, who testified that “ * * * I’ve seen her, well, drinking, drunk maybe you know * * * ”; that he saw defendant stagger; and when asked if he noticed whether or not defendant’s speech was slurred, he was “ * * * pretty sure it was”; that this did not happen all the time but “ * * * just about a part of the time * * and that on one of the evenings when he was at his grandfather’s helping put up the hay, the defendant came in not too long after 10:30 P. M. and she was staggering and “ * * * I think she was drunk.”

Upon cross-examination this boy was asked if the plaintiff had talked the matter over with him and replied that the plaintiff had come by and “ * * * he asked me to come along * * * ” to court with him. When asked if the plaintiff had told him why he wanted him to come to court with him, the witness testified, “He said, I’d been out there this summer and I’d seen her drunk before and maybe I could testify something * * and repeated at two other points in the transcript that this was what his grandfather, the plaintiff, had told him. He further testified that on the occasions he spoke of, the plaintiff was also present and said nothing to the defendant when he saw her drinking the beer, and that the defendant never became loud or boisterous or ill mannered. During his testimony he was asked the following questions, and gave the answers shown:

“Q Did you ever see your grandfather drink beer with her?
“A Oh, let’s see. I think I have. Maybe, I don’t know. I don’t think I have. I haven’t.
“Q Are you real sure, son, what you do or do not know here today?
“A Well, I was never with them when they was drinking any place.”

The defendant testified that these parties were married May 7th; that she was a good housekeeper, and his own children, who visited their home while it was being remodeled, told plaintiff that he “ * * * really got it nice now”; that she did not sleep all day but got up in the mornings and fixed all his meals, including breakfast; and that she worked on the remodeling of the house and also helped plaintiff plant corn.

With regard to her drinking, defendant testified that she never got drunk but if she drank even one can of beer the plaintiff would accuse her of being drunk; that she did not drink everyday; that on the occasions a “handy 6” was at home she would drink three or four beers during the day but there had been occasions when she would drink more. With reference to going to taverns, the defendant denied that she did •so except when in the company of her mother, and testified that when she took her mother to Festus, they would stop at * * * local bar and have a drink and then come home”; that she worked at Alta’s Tavern and Grocery Store before she was married, and drank beer before they were married; that she was not intoxicated on the occasion when the plaintiff’s grandson stayed with them to help get the hay in; that the “Local Bar” was the only one she would go to with her mother because that was the one her mother “ * * * goes to.” It further appeared •from her testimony that she stated she always showed respect and affection for her husband and his family also.

With regard to the automobile accident, she admitted that she did not tell her husband about having the accident because “Well, he was so cranky about that car, and since he had had his accident, I thought, my goodness, I’ll sure get.hung for this.”

The defendant further testified that the relationship between her son and plaintiff was “pretty good” until after the big patch of corn was planted, and that the son plowed, and in fact worked so late one night that he got the tractor stuck in a gully on the way home because he could not see; that the boy also helped plaintiff with the planting; that defendant did not expect the plaintiff to work her son “ * * * and ridicule him because he didn’t know anything about the work * * * ”; that it took several days to plow the field; that they planted a garden and the boy helped her take care of the garden and helped the plaintiff plant it. Defendant’s further testimony was that about two weeks before the plaintiff filed for a divorce “ * * * right out of the blue sky, he just came up to me and he said to me one day, ‘Old girl,’ he said, T want my divorce.’ ” that she said, “ ‘Well, Frank, what you mean you want a divorce ?’ He said, ‘That’s just what I said. I want a divorce.’ I said, ‘Well, what have I done ?’ And he said, ‘Well, you’ll find out.’ And I said, ‘Well, now, listen Frank, we’re not kids, we’re adults.’ And I said, ‘Can’t we talk this over ?’ I said, ‘If there’s something wrong, well,’ I said, ‘Maybe we can straighten it out.’ ‘No, no,’ he said, T want my divorce’ ”; that about three or four days or a week before the separation, she had been to town for groceries and when she came in the plaintiff said he wanted his divorce, “And he said, ‘Somebody’s going to have to leave.’ And I said, ‘Well, it’s not going to be me, Frank.’ And he said, ‘Well, my lawyer said somebody’s got to leave,’ and he said, ‘I think it should be you, because this is my home.’ Q. Now, did he then proceed to leave? A. Yes, he left then. I told him I wan’t going to leave. So he said well, he have to go in and see”; that after leaving, the plaintiff came hack from time to time, almost every day during the month she stayed on at the farm; that the plaintiff never did tell her why he wanted a divorce; that she had stayed on the farm for as long as two weeks without coming to town, that she did not want a divorce and stayed at the place a month thinking that after plaintiff “ * * * had time to think it over maybe he’d come back”, but that she would not go back to him now.

Other testimony offered on behalf of the defendant was given by Melvin Frazer, Mrs. Alberta Frazer, and Alta Simpson. Mr. Frazer testified that the defendant’s reputation for truthfulness, veracity, morality and “generally being a good woman” was good, and that he and his wife had been with the defendant on many occasions but had never seen her become intoxicated. Mrs. Alberta Frazer testified that she had known the defendant for three or four years, and agreed with her husband’s testimony as to defendant’s reputation, and further testified that she had never seen the defendant “ * * * conduct herself in any manner other than ladylike.” Cross-examination of these two witnesses developed the fact that the defendant worked at Alta’s and that Alta’s was a tavern, and that most of the times they had been with the defendant were in the tavern, where the defendant worked behind the bar. Alta Simpson testified that she was the owner and operator of the grocery store and tavern referred to in the testimony as Alta’s; that she had known the defendant about seven years, and also knew the plaintiff. She corroborated the testimony of the other two witnesses as to the defendant’s general reputation, and further testified that she had never seen the defendant in “an intoxicated condition” or conduct herself “in any manner other than a ladylike manner.” Cross-examination of this witness developed the fact that Mrs. Waters and her deceased husband lived next door to her place of business prior to his death.

The plaintiff first contends that the trial court erroneously refused to grant him a divorce on his petition. It is immediately apparent that some of the allegations of plaintiff’s petition are not supported by evidence from the record. There is no substantial evidence to substantiate the allegation that the defendant married the plaintiff to get a home for herself and her son, and not because of any affection for him. No one testified to any such fact or to any facts from which such an inference could reasonably be drawn. To the contrary, this record clearly shows that it was he who wanted the divorce, and that the defendant did not want a divorce. Neither is there testimony to substantiate the plaintiff’s allegation that defendant “habitually” drives plaintiff’s car when she is intoxicated, nor that defendant habitually frequents taverns at night while the plaintiff is working. No one, not even the plaintiff, testified as to ever seeing the defendant drive the car while in an intoxicated condition, and the plaintiff himself admitted that he drew the conclusion that defendant was at taverns only from the fact that there would be additional mileage on the car that he could not account for. In addition, the plaintiff’s own testimony negates his allegations that the defendant “habitually” drives the plaintiff’s car without his permission and the allegation that on the occasion when defendant had her wreck with this car, she took it without his permission. His own evidence was that she would drive with him into Festus, and after letting him out for work, would take the car, and that he knew where she was going on the occasion when her wreck occurred. The reasonable inference is that he gave her permission to drive the automobile on these occasions.

Some of the other allegations of the plaintiff’s petition are the subject of conflicting testimony. For example, the plaintiff testified that defendant slept late and failed to take proper care of the home and fix his meals and clean the house. The defendant testified directly to the contrary. The plaintiff testified that the defendant frequently became intoxicated, and the defendant testified that she never became intoxicated. So far as the plaintiff’s allegation that the defendant is habitually addicted to intoxicating liquor is concerned, the testimony of the parties and of the witnesses again conflicts sharply. With regard to this issue, the inescapable conclusion is that the plaintiff’s grandson did not know of his own knowledge the things to which he testified, but was rather led to testify as to them by the plaintiff’s discussion with him, or out of his desire to please his grandfather. His testimony is confused and conflicting, and in sharp contrast to that offered by defendant’s witnesses on this issue. The plaintiff was not misled into believing that defendant did not drink. His own evidence on this issue shows that the defendant worked in a tavern when the plaintiff met her and began going with her. Neither is this a case where the plaintiff was opposed to drink. By his own admission, he drank beer when they first met, and the evidence also shows she continued to drink beer after their marriage and that the plaintiff himself drank. In these respects the case is similar to Elgin v. Elgin, Mo.App., 301 S.W.2d 869 at page 872. As plaintiff repeatedly testified, he was not trying to stop her drinking, but did not want her to go out to taverns and drink unless he was with her. But his evidence fails to disclose that she did go to taverns and drink. Plaintiff admitted that he never saw defendant drinking in any of these taverns he accused her of “habitually” frequenting. The only testimony in this record as to the defendant’s presence in any tavern was given by the defendant herself, and that given by the witness Shannon with regard to defendant’s visits to the tavern and grocery store near their home. Defendant’s testimony as to stopping in for “a drink” in the company of her mother certainly does not substantiate plaintiff’s allegation. The witness Shannon, who saw defendant get a “handy 6” from the grocery store near their home and take it home, never testified he saw her drink there and further testified he never saw her engage in unbecoming conduct, and that he only knew of her getting a “handy 6” on three or four occasions. The provisions of § 510.310, subsection 4, RSMo 1959, V.A.M.S. adjure us to give due regard to the opportunity of the trial court to judge the credibility of the witnesses. The proof of the allegations of plaintiff’s petition above reviewed depends entirely upon whose testimony the trial court believed. It believed the defendant’s, and under this record it was certainly not clearly erroneous to do so, and therefore we cannot, on these allegations and the proof of them to be found in this record, set aside its judgment, § 510.310, supra.

The plaintiff’s evidence was that the parties had some arguments and that the defendant complained about his waking her up and about various things about the house not working properly. The record also substantiates his allegation that the defendant deliberately misinformed him regarding the circumstances of her wreck. In Coleman v. Coleman, Mo.App., 318 S.W. 2d 378 at [1, 2] page 381, this court held, “The indignities sufficient to sustain a decree of divorce are wrongful acts and conduct over a course of time which are of sufficient gravity to make the plaintiff’s life as defendant’s spouse intolerable. (Citing cases.)” This record fails to disclose testimony as to these matters that shows a course of conduct or acts which over a course of time reached such grave proportions as to make plaintiff’s life as defendant’s spouse intolerable, but instead illustrates the trivial nature of the grounds upon which the plaintiff, and the defendant as well, hereafter, seek to abrogate this marriage. It does not appear from this record that these quarrels and bickerings were continuous or extended, or that they often occurred. The instance concerning the wreck, while we do not in any manner condone such activity by either spouse, was an isolated happening. Moreover, from this record it does not clearly appear that it was the defendant’s wreck and not the combination of wrecks, one by the plaintiff and another by the defendant, with the defendant’s occurring merely a week or so after the plaintiff’s more serious wreck, that led to the cancellation of plaintiff’s insurance. We find no error in the trial court’s action in denying the plaintiff a decree of divorce.

The plaintiff also contends that the trial court prejudicially erred in awarding the defendant a divorce on her cross-bill based upon general indignities. Earlier herein the allegations of that cross-bill were stated, and the evidence summarized. Upon considering the evidence as to each allegation of defendant’s cross-bill, we have determined the plaintiff’s contention of error in this regard to have merit.

In an action for divorce based upon indignities, the party alleging the indignities has the burden to establish the truth of the charges by a preponderance of the credible testimony, Greenbury v. Greenbury, Mo.App., 223 S.W.2d 153. While this court defers to the trial court upon matters involving credibility, our ultimate duty is to try divorce cases de novo, reviewing the evidence and coming to our own conclusion and rendering such judgment as should have been given, Missouri Digest Divorce, <®^183, 184.

There was no testimony to support the allegation that plaintiff’s attitude and disposition toward defendant was hostile. The matter was not even touched on. There was no specific instance given upon which to base defendant’s allegation that the plaintiff embarrassed her in public on the few occasions they went out together after their marriage. The entire evidence of this transcript on that issue consists of one question and answer. Her counsel asked her, “Now, you further charge that he embarrassed you in public among your friends on a few occasions when he did go out with you socially, is that true? A. That’s right.” Taken literally, all this testimony indicates is that she was aware that there was such an allegation in her cross-bill. With regard to testimony of this nature, in Capps v. Capps, Mo.App., 65 S.W.2d 661 at page 662, it was held that such evidence had no probative force. See also Van Horn v. Van Horn, Mo.App., 231 S.W. 634. Into this same category falls the allegation of the cross-bill that “ * * * plaintiff has constantly mistreated and abused defendant’s minor son by continually criticizing the said child and nagging him * * The only evidence given by defendant going to that issue arose during questioning of the defendant regarding the support of herself and the boy by plaintiff, and was that the boy worked with the plaintiff and helped him, and that “ * * * I still didn’t expect him to work him and ridicule him because he didn’t know anything about the work, which disgusted the boy.” Not one specific instance of any nagging or criticism was stated. Not once did defendant or anyone relate what was said or done. The plaintiff’s testimony on the matter is of no assistance to defendant. His testimony was that he would ask the boy to do “ * * * different little things * * * ” and when the boy refused, plaintiff would ask the defendant why, whereupon he related what defendant would say. There is not even one report of any conversation between the boy and plaintiff. This record is devoid of any testimony, other than that one statement by the defendant set forth above, of any “criticizing and nagging” by plaintiff of defendant’s son. The same is true of her allegation regarding the bickerings and arguments. That testimony also consisted of one question and answer. The question immediately followed that asked of defendant with regard to her allegation that plaintiff embarrassed her, and reads, “Q. And that he continuously engaged in unmerited bickerings and arguments with you. Did he argue with you at times ? A. Yeah. He was always trying to start an argument is what he was doing. And then if I would say anything back to him why then he’d go off poutin’.”

The remaining allegations of general indignities of defendant’s cross-bill are that the plaintiff left her and has refused to live with her, that plaintiff repeatedly absented himself from home without excuse or justification; and that plaintiff often sulked, pouted, and refused to converse with defendant. As to the first of these, the evidence is clear from the testimony of both parties that the plaintiff left home and refused to live with defendant only after he had told her he wanted a divorce. It is obvious from the very evidence given by the defendant herself as to what happened immediately prior to the separation that his leaving the home was in contemplation of the proceedings which he later instituted, and after talking with his lawyer and being advised that he could not continue to live with defendant after the proceedings were filed. There was no other evidence on this issue. Her allegation that the plaintiff absented himself from home repeatedly, without explanation or excuse, finds its only support in her testimony that he often left home at 11:00 or 12:00 in the morning, when he had to go to work at 3 :30 P.M. She did testify that the plaintiff often sulked, pouted, and refused to converse with her, and that plaintiff would1 go “for hours and days” without talking to her. However, her own testimony showed that if, as she put it, she broke the ice and started a conversation, he would converse with her. It does not appear how often this would occur. Thus the evidence in this case fails to establish these occurrences as events which may be said to be of sufficient gravity as to constitute wrongful acts and conduct over a period of time which made the defendant’s life as plaintiff’s spouse intolerable, Coleman v. Coleman, supra. To the contrary, the evidence not only fails to do so, it clearly illustrates the trivial nature of the occurrences.

Accordingly, we hold the trial court erroneously granted defendant a divorce. The judgment should be affirmed as to denial to plaintiff of a divorce on his petition, and reversed as to granting the defendant a divorce on her cross-bill. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion of BRADY, C., is adopted as the opinion of the court. The judgment is therefore affirmed as to denial to plaintiff of a divorce on his petition, and reversed as to granting the defendant a divorce on her cross-bill.

ANDERSON, P. J., and WOLFE, J., concur.

RUDDY, J., not participating.


author: HARRY A. HALL, Special Judge.

text:
    Irene Agnes DUPREE, (Plaintiff) Appellant, v. A. J. DUPREE, (Defendant) Respondent.
    No. 30957.
    St. Louis Court of Appeals. Missouri.
    May 15, 1962.

      Frank Mashak, St. Louis, for appellant.
    William L. Weiss, William L. Mason, Jr., St. Louis, for respondent.
   HARRY A. HALL, Special Judge.

This is an appeal from an order denying appellant’s motion to modify a custody decree entered in a divorce action wherein movant requested permission of the court to remove her minor daughter from Missouri to California.

The second marriage of the parties ended March 2, 1954, when appellant received a divorce, and the custody of Brenda Ann, their five-year-old daughter. Respondent was given temporary custody of Brenda on alternate weekends and one month during the summer. On March 1, 1960, appellant moved to modify the decree by increasing the child support allowance from $12.00 to $17.00 per week, which the court granted, and for permission to remove the child to California, which the court denied.

Appellant is regularly employed, earning $62.00 per week, and she and Brenda live comfortably in a duplex with appellant’s mother, who is also regularly employed and contributes one-third of the expenses. Brenda, now 12 years old, attends school and stays with the lady downstairs when her mother and grandmother are not at home. Appellant testified that she wanted to move to California for employment but could not name any company which might employ her, and she had no definite offers of employment or any family connections in California. Her mother was not going to California but was remaining in St. Louis.

Respondent has remarried and regularly has Brenda every other week as provided in the decree, except when Brenda is ill or has some conflict with her school affairs. There was no evidence that Brenda was not getting along well in school or at home, and no reason for appellant’s request to take her to California other than appellant’s desire to find employment there.

Under the law, minor children of divorced parents become wards of the court, which has the duty of ascertaining the best interests of the child, and of necessity the court is vested with a broad discretion in all matters pertaining to the child’s welfare. Schumm v. Schumm, Mo.App., 223 S.W.2d 122; Baer v. Baer, Mo.App., SI S.W.2d 873.

It is equally well settled that one who seeks to change custodial provisions has the burden to prove that such change is necessary for the child’s best interests. Noble v. Noble, Mo.App., 341 S.W.2d 307; Schumm v. Schumm, supra.

The courts encourage the continued interest, love and affection of the divorced parents for the child, and strive to afford the child ample opportunity to have close contact with both parents as it grows up. Perr v. Perr, Mo.App., .205 S.W.2d 909; Baer v. Baer, supra.

Ordinarily the court will not permit the removal of a child to another jurisdiction because of the difficulty of enforcing subsequent orders deemed necessary for a child’s welfare, but where it clearly appears that such removal is for the best interests of the child, it is readily granted. Simmons v. Trenter, Mo.App., 327 S.W.2d 936; Richards v. Hayes, Mo.App., 320 S.W.2d 65; Baer v. Baer, supra.

Under the facts herein, we find that it is clearly in the interest of Brenda Ann that she remain in this jurisdiction where she can continue to see and be with both parents, and appellant has not shown any compelling reason otherwise.

Appellant’s contention that the court’s refusal to permit her to remove the child to California is an illegal restraint of appellant’s liberty is as groundless as it is novel. No cited authority supports such contention, and, obviously, appellant’s liberty is not affected by the court’s requirement that the ward remain in Missouri. If meritorious, the constitutional question was not raised at the first opportunity and was therefore waived. City of St. Louis v. Moore, Mo.App., 288 S.W.2d 383.

The allowance to appellant of an attorney’s fee of $50.00 was within the discretion of the court, and we find no error in this respect.

The judgment of the trial court is affirmed.

ANDERSON, P. J., and WOLFE, J., concur.


author: J. MORGAN DONELSON, Special Commissioner. PER CURIAM.

text:
    Racine Tobi LONG, (Plaintiff) Respondent, v. Donald H. LONG, (Defendant) Appellant.
    Nos. 30919, 31014, 31113.
    St. Louis Court of Appeals. Missouri.
    May 15, 1962.

      Pollock, Ward, Klobasa & Shaw, T. Hartley Pollock, John A. Shaw, William E. Buckley, St. Louis, for appellant.
    Martin, Dinger & Kroening, Marvin L. Dinger, St. Louis, for respondent.
   J. MORGAN DONELSON, Special Commissioner.

These are consolidated appeals by defendant-appellant from a decree modifying a divorce decree to increase child support payments and orders allowing plaintiff-respondent attorney fees and suit money, in connection with the motion to modify and these appeals.

It is well established that such cases are tried de novo upon appeal. Hawkins v. Hawkins, Mo.App., 250 S.W.2d 817; Simmons v. Trenter, Mo.App., 327 S.W.2d 936. Neither party nor any other witness personally appeared before the court. The evidence consisted of exhibits (mostly court records), depositions of the parties, and stipulations as to what testimony of plaintiff and defendant would be if called to testify; the truth of which was not admitted by the parties.

Plaintiff and defendant were married on March 15, 1944, and lived together as husband and wife, except for a brief period, until July 5, 1947. Two children were born of this marriage, John Scott Long, born December 4, 1944, and Victoria Hope Long, born May 23, 1947.

Plaintiff filed suit for divorce in the Circuit Court of the City of St. Louis and was granted a divorce on October 25, 1948. By the terms of the decree plaintiff was (1) granted custody of said children with visitation rights to defendant; (2) awarded the sum of $12.50 per week for each child for their care and support; (3) awarded $12,-000.00 alimony in gross, payable in installments extending to October, 1952; and (4) also awarded $500.00 for her attorney fee.

Plaintiff’s first motion to modify which sought increased child support payments was filed November 13, 1950, and heard and overruled by the court on January 5, 1951. On September 17, 1958, plaintiff filed her second motion to modify said child support payments, which was sustained on October 24, 1958. The order modified the original decree and increased the child support payments to be paid plaintiff from $12.50 per week per child or a total of $25.00 per week to $20.00 per week per child or a total of $40.00 per week. On October 20, 1959, plaintiff filed another, her third, motion to modify the decree as to child support payments. This motion was voluntarily dismissed without prejudice on September 7 1960.

The instant or fourth motion to modify the decree as to child support payments was filed November 2, 1960, by plaintiff. Her motion alleged that there had been a substantial change of plaintiff’s position in regard to the care of said children, and also a substantial change in defendant’s financial position. Thereafter, plaintiff filed her motion for attorney fees, suit money and costs. The court awarded plaintiff $150.00 “on account pending the final disposition,” on January 13, 1961.

The motion to modify was heard by the court on February 24, 1961, and entered its order modifying the decree on March 9, 1961. The court order increased the weekly support of said children from $20.00 per week for each child to $30.00 per week for each child, or a total of $60.00 per week for both children. The court also allowed plaintiff $100.00 additional as and for her attorney fee. Later, on motion the court awarded plaintiff the sum of $300.00 for her attorney fee and $100.00 to pay necessary costs and expenses of these appeals. It is of these orders that defendant complains Rere.

Plaintiff lives with her children and her mother in an apartment. Her only sources of income are about $150.00 per month from Rer mother and brother, and the $40.00 per week from defendant for the care and support of said children. Plaintiff is not employed regularly. It also appears that plaintiff inherited from her father a total of about $45,000.00, which was distributed to her from 1946 to 1948. She also received ■$12,000.00 alimony in gross from defendant from 1948 to 1952, or a total of $57,000.00. The evidence presented now is that plaintiff has no funds, money, stocks, bonds, or other investments or property, but she is unable to and did not state what happened to her inheritance and other money, except she gave .some to her mother.

Plaintiff has no checking account but operates on cash only. She keeps no records of any kind, no sale receipts or other -receipts, and writes no checks for her expenses in the operation of her household for herself, the two children and her mother. The stipulation shows she would have testified that $75.00 per week is required to care for said children now. No record of any kind is maintained by plaintiff as to any of these expenses of the children. While the courts have not required corroborative evidence of the expenses for the care and support of children, the complete absence of such evidence as receipts, sales slips, etc., makes this court wonder if it may not have been by design.

In 1958 the son was in high school and he was still in high school in 1961. The daughter was in junior high school in 1958 and she still was in junior high school at time the plaintiff’s deposition was taken in 1961. In 1958 the plaintiff lived with her mother and two children in an apartment and paid $102.50 a month, with heat not furnished. They now live in an apartment with heat furnished and pay $125.00 per month rent.

- The evidence discloses that defendant is employed by his brother in a business which is owned by his brother. He earns from $72.00 to $82.00 per week after tax and other deductions. His gross income was approximately $4400.00 and $4500.00 for the years 1959 and 1960 respectively. He receives $200.00 per month from his brother in settlement of his father’s estate, which will continue about six years. His other assets are $400.00 in a checking account, $180.00 in two savings accounts, a 1953 Oldsmobile automobile, half interest in his mother’s house where he resides rent free, $5000.00 partial distribution from his mother’s estate (which is now invested but no income has been received therefrom) with about $1000.00 yet to be distributed, and 100 shares of stock costing $600.00. He has for three years been a contributor of $30.00 per month as a member of the Downtown Investors Syndicate. His present wife has no other source of income. He has no paid up life insurance policies, but has life insurance policies as' follows: $2500.00 since 1936, $3000.00 since 1946-48, and $10,000.00 since 1954. He borrowed the maximum on the $2500.00 policy in 1944 and this is still outstanding. He also has group hospitalization insurance which includes the children.

No evidence appears in the record of the expenses for the care and support of the children at the time of the modification in 1958 except as set forth above. The children, it is true, are two years older at the time of hearing than at time of the modification, but, as indicated above, they were still in the same type of school.

A review of the entire record discloses that there is no substantial change in the assets and earnings of defendant since 1958 at the time of modification and now. The court has outlined his assets and earnings above. In 1958 he was earning $70.00 to $75.00 per week. Defendant’s mother had died prior to the filing and modification in 1958. Her estate was in administration at that time and no distribution had been made. His interest was the same in her estate as now, except subject to claims against her estate and costs of administration. Defendant was receiving the same $200.00 per month from his brother in settlement of his father’s estate. He also was a member of the Downtown Investors Syndicate at that timé, and lived in his mother’s home rent free. Apparently defendant purchased the 100 shares of stock valued at $600.00 since that time. There is no evidence of what his checking account or savings account, if any, were in 1958 and no inquiry was made in that regard by plaintiff. Defendant had the same insurance policies then as now, including the hospitalization coverage.

The amount allowed for the care and support of children is, of course, subject to later modification where changed positions or conditions require it. The needs of the children and the ability of the father to contribute necessarily must be considered by the court. In the case at bar, after a careful consideration of the records and a review of all the authorities, we must conclude that plaintiff has not presented sufficient competent evidence to show a change of conditions or circumstances with respect to the needs of the minor children and with respect to the financial ability of defendant to pay an increased support payment since the order modifying the decree on October 24, 1958. These burdens rest upon plaintiff. The court was in error and was not justified, under the evidence, in rendering its order modifying the decree and plaintiff’s motion to modify must be overruled. Papenberg v. Papenberg, Mo.App., 289 S.W.2d 468; Wonneman v. Wonneman, Mo.App., 305 S.W.2d 71; Samland v. Samland, Mo.App., 277 S.W.2d 880; Simmons v. Trenter, Mo.App., 327 S.W.2d 936; Montgomery v. Montgomery, Mo.App., 257 S.W.2d 189.

It is urged here that the court also erred in allowing plaintiff an attorney fee and suit money for prosecution of her motion to modify and of these appeals. We find this contention without merit. This court might well have reached a different decision in this regard in view of plaintiff’s lack of explanation of the dissipation of a small fortune, even though she now says she has no funds or property, but said allowances are within the sound discretion of the court. We conclude the court did not abuse its discretion and deference will be given to the trial court’s judgment. Hawkins v. Hawkins, supra; Wonneman v. Wonneman, supra.

Therefore, the orders of the court allowing attorney fees, and suit money for the original hearing and these appeals are hereby affirmed, and that portion of the judgment and order modifying the decree to increase child support payments is reversed, and the court is directed to dismiss plaintiff’s motion to modify.

PER CURIAM.

The foregoing opinion by J. MORGAN DONELSON, Special Commissioner, is adopted as the opinion of the Court.

The orders of the court allowing attorney fees, and suit money for the original hearing- and these appeals are hereby affirmed, and the portion of the judgment and order modifying the decree to increase child support payments is reversed and the trial court is directed to dismiss plaintiff’s motion to modify.

ANDERSON, P. J., WOLFE, J., and ELGIN T. FULLER, Special Judge, concur.


author: HUNTER, Presiding Judge.

text:
    Nigel L. NEVE and Mary Lois Neve, Plaintiffs-Respondents, v. RELIANCE INSURANCE COMPANY OF PHILADELPHIA, Defendant-Appellant.
    No. 23487.
    Kansas City Court of Appeals. Missouri.
    April 2, 1962.
    George W. Meyer and Rogert W. Penner, Kansas City, for appellant.

      Robert L. Shirkey, Kansas City, for respondents.
   HUNTER, Presiding Judge.

This is an action on a fire insurance policy issued in the State of Kansas on property-located in Johnson County, Kansas. Plaintiff s-respondents, Nigel L. Neve and Mary Lois Neve, husband and wife, and residents of Kansas sued to recover for damages to their basement type house and contents resulting from explosion and fire on December 17, 1954. The agreed upon amount of the loss was $3,250.

The defense asserted by defendant-appellant, Reliance Insurance Company of Philadelphia, was that Nigel L. Neve intentionally caused the explosion and fire to occur in order to collect the insurance money in question.

In view of what we believe is the necessary disposition of this appeal a brief statement of the evidence is sufficient.

On the day of the fire Mrs. Neve left for work about 7:30 a.m. The two daughters left at 8:30 a.m. to go to school. Mr. Neve was alone in the house from then until he left it prior to the explosion.

The Chief of Police of Merriam, Kansas, happened to be in his car on the street near the house when the explosion and fire occurred. At once on his two-way radio he called the Police Dispatcher who immediately called the nearby fire department. Records of the fire chief showed this call was received at 3:48 p.m.; that the fire truck and crew left the fire station at 3 :50 p.m. and arrived at the scene of the fire at 3:51 p.m. The only door to the premises was locked and the firemen broke it down.

The fire was extinguished within a matter of minutes. An immediate inspection disclosed that the core of the gas cock (valve) in the main gas line to the circulating heater in the center of the house was lying on the floor and the gas cock was in an upside down position. As a result of the core being out of the gas cock a free flow of gas escaped into the premises. There was evidence that this gas filled the premises until ignited by a pilot light on a stove and that this took only a few minutes to occur.

Nigel Neve, was an experienced machinist and thoroughly understood the operation of the gas cock in question. Numerous witnesses on behalf of defendant testified that to remove the core from the gas cock required first the removal of a nut and washer. They stated the only way to account for the absence of the core would be for somebody to have intentionally removed it-They also testified that they had never-known a gas cock like this to be installed upside down, but it could be turned upside down with a tool. Mr. Neve was asked,. “Q. Now then, if this (gas cock) is installed with this washer on and with the nut on in position, would it be possible for this valve core to get out of there unless somebody took it out on purpose? A. No way that I know of.” There was also evidence to the effect the gas cock in question had. been properly installed.

The defendant adduced additional evidence which it contended had the effect of' making a very strong circumstantial case-that Mr. Neve had intentionally caused the-explosion and fire. The import of this evidence was: (1) There was but one way to-get in and out of the house and that was through the basement door which Mr. Neve locked when he left that afternoon and which the firemen had to break down to - enter the premises. (2) Neve was the last person known to- be in the premises and the last to leave before the explosion and fire.. (3) Contrary to the usual practice Mr. Neve just before 4:00 o’clock unexpectedly appeared at the school his daughters attended and took them with him; otherwise, they at the close of the school day would have • walked the three or four blocks home. (4) It would take Mr. Neve, or anyone, only about a minute to drive from the Neve ■ house to the school (while waiting at the school Mr. Neve heard the fire department goby). (5) About one and one-half months.. before the fire Mr. Neve increased his insurance from $2,000 to $6,000 on both the house and its contents. (6) Plaintiffs were short of money and Mr. Neve had been out ■of work a substantial period of time. (7) Mr. Neve, before leaving the house on the afternoon of the explosion took with him his strongbox containing his insurance policy, some deeds and an abstract, his two dogs, his watchmaking tools, a valuable accordion, and a small stock of watches.

Mr. Neve testified that he had nothing to do with the explosion and fire, and did not cause them. He undertook in some detail to explain why he had picked up his daughters and had possession of the above mentioned items that afternoon.

At the close of the evidence and at plaintiff’s request, the following instruction was .given by the trial court:

“Instruction No. 3
“You are instructed that one of the defenses of Reliance Insurance Company of Philadelphia is that plaintiff Nigel Neve deliberately caused the fire and explosion in his residence on December 17, 1954. In this connection you are instructed that there is a natural presumption of innocence which •exists where an act of this nature is charged and you have a right to consider the improbability that one will •commit an act of criminal nature as an element necessarily involved. You may consider this as you should consider every material matter involved in the case, and after viewing the whole case, the verdict should be in accordance with the testimony and proof.”

Defendant contends the instruction contains a procedural presumption, evidentiary in nature, and that its propriety must be tested by the procedural laws of the forum (Missouri). Defendant assigns the giving -of this instruction as reversible error for the reasons: (1) This, as any rebuttable presumption, takes flight upon the introduction of evidence, however slight; and where evidence has been introduced to rebut the presumption, the giving of an instruction as to its existence is reversible error. (2) An instruction as to a presumption of evidence and improbability that one will commit an act of a criminal nature injects criminality into the case, and to so instruct is reversible error.

Plaintiff’s response is that Instruction No. 3 has the full sanction and approval of the Supreme Court of Kansas in Wallace v. Fidelity Phoenix Fire Insurance Company, 135 Kan. 133, 9 P.2d 621, having been adopted from the case of First National Bank of Portland v. Commercial Union Assurance Company, 33 Or. 43, 52 P. 1050. Plaintiffs also refer to defendant’s answer which reads in part: “11. Defendant states that the interpretation and construction of this policy shall be governed by the laws of the State of Kansas * * Further, that Kansas law was followed even to the extent that attorneys’ fees were assessed in accordance with Kansas procedure (fixed and allowed by the court). Hence, say plaintiffs, Kansas law applies in determining whether or not Instruction No. 3 is a proper instruction, and that it is a proper instruction.

The well established general rule is that the law of the forum (Missouri) controls as to procedure and as to all procedural questions. Absent something binding to the contrary, a litigant is not entitled to insist upon the trial of his rights or defense under the procedural laws of a sister state rather than under the procedural laws of the forum state. Lynde v. Western & Southern Life Ins. Co., Mo.App., 293 S.W.2d 147, 150.

There is nothing in the record to support plaintiff’s suggestion that the parties had agreed the case was to be tried in accordance with the procedural law of the State of Kansas. The interpretation and construction of a contract is determined by substantive law. It is the accepted general rule that an admittedly Kansas contract is to be interpreted and construed in accordance with the substantive law of the State of Kansas. Thompson v. Traders’ Ins. Co., 169 Mo. 12, 68 S.W. 889; Ashburn v. Sun Life Assur. Co. of Canada, Mo.App., 197 S.W.2d 694(2) ; Rosenthal-Sloan Millinery Co. v. Hanover Fire Ins. Co., Mo.App., 219 S.W. 669.

The statement in defendant’s answer that the interpretation and construction of this policy shall be governed by the laws of the State of Kansas is not tantamount to an agreement by the parties that when the case is tried in a Missouri court Kansas procedural laws shall govern. Nor is defendant’s failure to object to the court, rather than the jury, setting the attorneys’ fee sufficient evidence of an agreement of the parties that the entire case was to be tried in accordance with the procedural laws of the State of Kansas rather than the procedural laws of the forum.

As with most questions the rule of law is clear and it is only its application that is sometimes difficult. It is occasionally difficult to ascertain whether a particular matter relates to remedy or to a substantive right. It is the court at the forum which determines according to its own conflict of laws rule whether a given question is one of substance or procedure. Hopkins v. Kurn, 351 Mo. 41, 171 S.W.2d 625; Restatement, Conflict of Laws, Sec. 584(b).

The Missouri rule is as stated in Martinez v. Missouri Pac. R. R. Co., Mo. Sup., 327 S.W.2d 855, “ * * * the law of the forum governs all matters falling within the description of burden of proof, including the sufficiency of the evidence and the burden of going forward with the evidence; and, also, * * * the law of the forum governs presumptions and inferences to be drawn from evidence. Restatement, Conflict of Laws, Sec. 595, p. 710.” See, Meredith v. Terminal R. R. Ass’n of St. Louis, Mo.App., 257 S.W.2d 221, 225 (9-10); Lukas v. Hays, Mo.Sup., 283 S.W.2d 561, 565(7). This accords with the principle that the rule of comity extends to substantive rights and does not in general apply to remedies.

We believe it clear and we rule that the question of the propriety of giving a rebuttable presumption of innocence instruction in a civil case such as this, is a procedural question, to be determined by this court in accordance with the law of the State of Missouri. Cf., Gibson v. Metropolitan Life Ins. Co., Mo.App., 147 S.W.2d 193, 198(7).

Numerous Missouri cases have held that the giving of a rebuttable presumption instruction in a civil case is prejudicial error. See, Bailey v. Bailey, Mo.Sup., 11 S.W.2d 1026; Lampe v. Franklin American Trust Co., 339 Mo. 361, 96 S.W.2d 710, 107 A.L.R. 465; Dove v. Atchison, T. & S. F. Ry. Co., 349 Mo. 798, 163 S.W.2d 548; McCune v. Daniels, Mo.App., 251 S.W. 458; Swoboda v. Nowak, 213 Mo.App. 452, 255 S.W. 1079; Gibson v. Metropolitan Life Ins. Co., Mo.App., 147 S.W.2d 193; State ex rel. Nelson v. Hammett, 240 Mo.App. 307, 203 S.W.2d 115; Detrich v. Mercantile Trust Co., Mo.Sup., 292 S.W.2d 300.

In Gibson v. Metropolitan Life Ins. Co., Mo.App., 147 S.W.2d 193, 198, where the questioned instruction told the jury, “after the first premium was paid, * * * the law presumes that every condition in said policy to keep it in force is complied with by the insured. * * * ” the court ruled: “Even if this were a case for the application of the presumption mentioned, it would be erroneous to instruct the jury with reference to it. At most it is merely a procedural presumption, and when evidence is introduced pro and con upon the issue, the case should go to the jury upon the evidence unaided by any reference to the presumption.”

The instruction in Swoboda v. Nowak, 213 Mo.App. 452, 255 S.W. 1079, 1083, read: “The court instructs the jury that the law presumes the note sued on was given for lawful purpose, and it devolves on defendants to show by the preponderance of the evidence that it was given for an unlawful purpose, before they are entitled to a verdict in this case.” The court went on to say: “The attack upon this instruction is that when evidence had been adduced, pro and con, as to the character of the consideration for the note as shown above, then any presumption of a valid and lawful consideration disappeared from the case; and that it was error to refer to such presumption in submitting the case to the jury. This argument is indeed sound. In so far as any presumption of this character existed in favor of this note, it could operate merely by way of coming to plaintiff’s aid to make a prima facie case. When the facts all came in before the jury, such presumption had no further procedural purpose to serve, and it was error to throw the same into the scales in favor of plaintiff in submitting the case to the jury.”

In State v. Martin, 364 Mo. 258, 260 S.W.2d 536, 541, our Supreme Court stated, “In civil cases we hold that a presumption is a rule of law (unless it is a conclusive presumption, i. e., a rule of substantive law) which puts the burden of producing some substantial evidence on the party presumed against; that when substantial evidence, however slight, is adduced by the opponent, the presumption disappears and the triers of fact receive the issue free of any presumption; that while the facts giving rise to the presumption in the first place remain in the case, those facts and those to the contrary are for the jury. Michler v. Krey Packing Co., [363] Mo. [707] Sup., 253 S.W.2d 136, 139 [1-4]. And in civil cases we condemn instructions as confusing and misleading which tell the jury what is ‘presumed’. And hold that presumptions are for the court, not the jury.”

In State ex rel. Detroit Fire & Marine Ins. Co. v. Ellison, 268 Mo. 239, 187 S.W. 23, the Supreme Court, en Banc, considered an instruction which read in part: “And you are further instructed that in civil suits (like this one), just as in the trial of a person charged with a crime in a criminal case, the law presumes that the person charged with the willful burning of the property is innocent, and the presumption continues until he is proven guilty by a preponderance of the credible evidence in the case.” The court held this to be an improper instruction tending to bring criminality into the case and to confuse the jury as to the proper burden of proof in a civil case, citing with approval Rothschild v. American Cent. Insurance Co., 62 Mo. 356.

In the Rothschild case, supra, the instruction on burden of proof after advising the jury of the difference between the burden of proof in a civil case and in a criminal case concluded, “regard being had, however, to the serious nature of the charge, in determining the preponderance of weight of evidence.” In holding the instruction to be erroneous, the court said: “Now to tell the jury, that, in determining on which side the weight of evidence was, regard was to be had to the serious nature of the charge, was to inject into the case an element of criminality * * * and which * * * we think should have been excluded from the jury. It was equivalent to saying to the jury, if' you find a verdict for the defendant on this ground, you will thereby establish a serious charge against the plaintiff. It was calculated to impress them with the belief, that greater caution should be exercised by them and proof of a more serious conclusive character be required, than in ordinary civil cases. The supplementary words in question are further objectionable in that they constitute a (judicial) commentary upon the evidence.”

In accordance with the reasoning contained in the above mentioned authorities, it is our conclusion and ruling that the giving of Instruction No. 3 was preju-dicially erroneous and necessitates a new trial as to the issue of liability. There was no issue as to the amount of damage to be paid if liability under the policy is established, and there was no preserved error concerning the determination of the amount of the attorneys’ fee.

While other contentions of error have been made it is unnecessary to consider them. They are not likely to recur on a new trial in view of the research of counsel attendant this appeal.

The judgment is reversed and the cause is remanded for a new trial on the issue of liability .only.

It is so ordered.

All concur.


text:
    LOCAL 88 MEAT AND RELATED INDUSTRIES HEALTH AND WELFARE FUND TRUST, a Non-Profit Corporation, (Plaintiff) Respondent, v. Marie WATKINS, Executrix of the Estate of Oliver Watkins, Deceased, and Marie Watkins, (Defendants) Appellants.
    No. 30918.
    St. Louis Court of Appeals. Missouri.
    May 15, 1962.
    As Modified May 21, 1962.
    Robert A. Cedarburg, St. Louis, for appellants.
    David G. Dempsey and Richard B. Dempsey, Clayton, for respondent.
   J. MORGAN DONELSON, Special Commissioner.

This is an action for money had and received in the sum of $8,000.00 (plus interest) which represented the down payment made to defendants by plaintiff for the purchase of certain real estate. The real estate transaction was never completed or closed. Defendants filed a general denial to plaintiff’s petition. The cause was tried before a jury with a verdict and judgment rendered for plaintiff in the sum of $8,000.00 plus interest at 6% per annum from July 1, 1957, together with costs. Following an unavailing motion for new trial, defendants appealed.

Plaintiff filed its motion to dismiss the appeal on the grounds that defendants’ brief fails to comply with the provisions of Supreme Court Rule 83.05, V.A.M.R. The motion specifies (1) Appellants’ brief totally fails to set out what rulings or actions of the trial court were allegedly erroneous, (2) the points of appellants’ brief are nothing more than mere abstract statements of law which are not related to the facts and issues of this appeal, and (3) by reason thereof respondent is unable to respond properly to the arguments raised in appellants’ brief.

The motion to dismiss the appeal was filed prior to the argument and submission of the case, but the court ordered the motion submitted with the case. Defendants and plaintiff were permitted to argue the appeal before the court.

Although plaintiff’s motion to dismiss for failure to comply with the rules was filed January 26, 1962, and although it stated the defects in defendants’ brief, no request for a continuance or for authority to file an amended brief was made.

We find plaintiff’s motion is meritorious and should be sustained. Defendants’ brief sets forth and assigns five (5) points under “Points and Authorities,” which are mere abstract statements of established principles of law with citation of cases. None of the points state how or why they apply in this case, or in what way, if any, the trial court should be convicted of error. Representative statements are as follows: “Instructions given must be within the evidence,” and “Failure to fully perform promises personal to an individual contained in a contract for the sale of realty is not a breach of contract.” These are not in compliance with Rule 83.05(e) and also preserve nothing for review. Walker v. Thompson, Mo.Sup., 338 S.W.2d 114; Crocker v. Tripp, Mo.App., 344 S.W.2d 149. There is nothing in defendants’ brief which indicates a misinterpretation or misunderstanding of the rules governing appellate practice, but it appears that the rules are simply ignored. Rigg v. Hart, Mo.Sup., 255 S.W.2d 778.

Rule of Civil Procedure, 83.05(e) is as follows:

“Points Relied On. The points relied on shall briefly and concisely state what actions or rulings of the Court are claimed to be erroneous and briefly and concisely state why it is contended the Court was wrong in any action or ruling sought to be reviewed. Setting out only abstract statements of law without showing how they are related to any action or ruling of the Court is not a compliance with this rule.”

It would seem that the rule, if read, is clear and leaves nothing to surmise or speculation. This court further notes, although not specifically raised in plaintiff’s motion to dismiss, that Rule 83.05(a) is further violated in that statements in the argument as to what the record contains are not designated by page of the transcript where the statement may be found or verified; also, that no instruction complained of, or portion thereof is set forth in the argument portion or elsewhere of the brief as required by this rule.

We are well aware that our primary duty is to litigants rather than counsel who represent them as asserted by Judge Hyde in Ambrose v. M.F.A. Co-Operative Association of St. Elizabeth, Mo.Sup., 266 S.W.2d 647, 650.

Therefore, in order to determine whether the interests of justice requires us to decide the cause on its merits in spite of the defects in the brief as set forth above, we did carefully read the briefs, the transcript, and have made additional research required to decide the case. Rule 83.09; Ambrose v. M.F.A. Co-Operative Association of St. Elizabeth, supra. We are satisfied from the facts shown and the record that the interests of justice do not require a different disposition of the case from that found and determined by the jury and the trial court. The Special Commissioner, therefore, recommends that the motion to dismiss the appeal be sustained and the appeal be dismissed.

PER CURIAM.

The foregoing opinion by DONELSON, Special Commissioner, is adopted as the opinion of the Court.

The motion to dismiss the appeal is, accordingly, sustained and the appeal is dismissed.

ANDERSON, P. J., WOLFE, J., and ELGIN T. FULLER, Special Judge, concur.