Grieshaber v. Grieshaber

313 S.W.2d 763, 1958 Mo. App. LEXIS 542
CourtMissouri Court of Appeals
DecidedJune 3, 1958
DocketNo. 29954
StatusPublished
Cited by4 cases

This text of 313 S.W.2d 763 (Grieshaber v. Grieshaber) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Grieshaber v. Grieshaber, 313 S.W.2d 763, 1958 Mo. App. LEXIS 542 (Mo. Ct. App. 1958).

Opinion

RUDDY, Presiding Judge.

A suit for separate maintenance was instituted by plaintiff (wife) against defendant husband). Defendant filed a cross-bill for divorce. The trial court in its judgment found against plaintiff on her petition and against defendant on his cross-bill and ordered plaintiff’s petition and defendant’s cross-bill dismissed with prejudice. Plain[764]*764tiff appeals from the judgment and decree dismissing her petition.

Plaintiff’s petition was based on constructive abandonment by defendant as a result of conduct of the defendant which rendered her condition as his wife intolerable. Defendant in his cross-bill alleged indignities such as to render his condition as her husband unbearable.

The sole point relied on by plaintiff is that the decree and judgment of the trial court denying separate maintenance to her was against the weight of the evidence. We said in Woodman v. Woodman, Mo.App., 281 S.W.2d 555, loc.cit. 559, that:

“An action for separate maintenance is a statutory proceeding governed by Section 452.130 RSMo 1949, V.A.M.S. The appellate courts of this state have consistently ruled that the statute means just what it says, and that before a wife can prevail in a suit for separate maintenance, she must prove abandonment by her husband and a failure on his part to support her. If either element is absent, she is not entitled to recover * * *. There being a statute authorizing the proceeding, a suit for separate maintenance is a statutory action at law, but it-has been ruled that it is sui generis, and governed by the rules of equitable procedure, * * * and each case of this character must rest and be decided upon its own facts * * *. While we are not bound by the action of the trial court, it is our duty to defer to its findings unless we can point to some reason for not doing so, * *

Therefore, it is our duty to affirm the trial court unless its judgment is clearly erroneous. Oakes v. Oakes, Mo.App., 303 S.W.2d 940, loc.cit. 941.

With the foregoing principles in mind, we will examine the facts disclosed by the evidence.

Plaintiff and defendant were married in August of 1948 and lived on a farm about 6 miles from Ste. Genevieve, Missouri. This was the third marriage for plaintiff. She had two children by a prior marriage and she and defendant had 2 children born of their marriage. Plaintiff left defendant on September 5, 1956, and from the date of their marriage until the separation the parties lived on the aforementioned farm. The closest neighbors were about one-half mile from the home of the parties and the home was about one mile from the main road. Plaintiff had lived on a farm prior to her marriage with defendant. She had seen defendant’s farm prior to the marriage and was acquainted with its accommodations and location. At the time of her marriage plaintiff knew she was going to live on defendant’s farm after the marriage. Following their marriage they moved into an old house on the farm. The house had no modern conveniences, except electricity. Plaintiff and defendant lived in this house for six years and thereafter they built a new one. This new house had five rooms and modern conveniences but had no telephone.

Defendant was an iron worker and was engaged in hazardous work. His duties required him to connect structural iron pieces together at places as high as 465 feet. In the course of his duties he had to work at these extreme heights and places that offered dangerous footing. Most of his employment was in the area of the City of St. Louis and at times he worked in Alton and Belleville, Illinois. Defendant would leave for his employment as early as 4:30 a. m. and would return to his home about 6:30 p. m. At times he w.ould have to drive as far as 100 miles to reach his work for the day. Plaintiff admitted that defendant was engaged in dangerous work. She testified that when he came home he would eat and talk a short while and then would go to bed. Plaintiff admitted defendant was not a “drinking man” and not a “gambling man” and that she had never suspected him of associating with other worn-[765]*765en. She further admitted that defendant supported her two children born of a prior marriage.

Defendant testified that plaintiff was a good wife and a good mother to the children. He said she kept the house clean and was a good worker. The only exception he made in this connection was a complaint about her cooking. He said he had “seen better cooks.” However, he softened this complaint with the explanation that he thought she cooked to the best of her ability. Plaintiff helped defendant with the farm work. She helped with the hay crop and the feeding of the animals, made the garden and canned the products from the garden.

There was no conflict in the testimony concerning the aforesaid facts. We will now turn our attention to the testimony wherein an area of conflict seems to exist.

Plaintiff testified she asked defendant to have a telephone installed in the home and that he refused, telling her he did not want a phone. Defendant in answering this complaint testified that he tried to have a phone installed but was told by the telephone man that the party line was filled. Defendant further testified that he inquired about installing a private line and found the cost prohibitive.

Another complaint made by plaintiff was that she had no transportation while her husband was at work. She testified she had no means of getting to town or calling on friends and that she had to call on the neighbors to take her children to the doctor. She admitted there never was a time when the children were without medical attention when needed. There had been a truck on the farm. Plaintiff said she was unable to operate and handle this truck. Defendant admitted that he and plaintiff had discussions on the lack of transportation. However, he said he tried to teach his wife to drive an automobile, but had no success.

Plaintiff complained that her husband failed to give her extra money for her personal use although she admitted she got extra money when she purchased groceries in town. On the trips to purchase groceries plaintiff would cash defendant's paycheck on some occasions and on the others defendant would cash his check and give plaintiff money to purchase the groceries. Plaintiff admitted that defendant did not put any limit on the amount she could spend for groceries. She further admitted she had money left over from the purchase of groceries which she used for personal items. She said she bought books with some of this money.

Defendant testified he permitted plaintiff to buy whatever she wanted, adding that he never knew an instance when he told her not to buy something she wanted. He also said that to his knowledge there never was a time when she or the children ever wanted for food or clothing. In connection with this same complaint plaintiff testified that she was unable to buy the right kind of clothes for herself and the children. However, she admitted the clothes they had were adequate and sufficient. One of plaintiff’s witnesses, Betty Hanks, testified that the children never looked neglected “as far as dress or cleanliness” were concerned.

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Bluebook (online)
313 S.W.2d 763, 1958 Mo. App. LEXIS 542, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grieshaber-v-grieshaber-moctapp-1958.