I v. I

523 S.W.2d 103
CourtMissouri Court of Appeals
DecidedMay 5, 1975
DocketNo. KCD 26875
StatusPublished

This text of 523 S.W.2d 103 (I v. I) 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
I v. I, 523 S.W.2d 103 (Mo. Ct. App. 1975).

Opinion

PRITCHARD, Chief Judge.

On May 10, 1972, the court entered a decree of divorce to respondent wife, but granted the temporary care, custody and control of a minor son born of the marriage to her “pending investigation of both plaintiff and defendant by the welfare department.” On July 13, 1973, after further evidence was presented pertaining to the custody of the minor child, “together with written reports prepared by the welfare offices of both Carroll County and Greene County, Missouri, regarding the suitability of the homes of both plaintiff and defendant for said minor child,” the court entered its final decree awarding its general care, custody and control to the wife, except for certain times on weekends when the husband was to have him. Notice of appeal was filed July 20, 1973. The judgment became final after July 13, 1973, for purposes of appeal as all issues were then disposed of, which under the cases prevents piecemeal appeals. See the factually analogous case of Green v. Green, 240 S.W.2d 741 (Mo.App.1951), where under the then rule an appeal was dismissed as premature because the judgment, although granting a divorce, did not dispose of matter of child custody which had been, as here, taken under advisement by the court. See also Allcorn v. Allcorn, 241 S.W.2d 806, 810[1,2] (Mo.App.1951).

The husband claims (1) that his conduct upon which the wife based her cause of action for divorce had been condoned by her, and that the evidence of general indignities offered by him showed him to be the innocent and injured party; and (2) that the competent and credible evidence in the case showed that the welfare and best interests of the minor child would be better promoted by awarding his custody to the husband.

The wife’s petition for divorce was filed September 13, 1971, and alleged that the husband on “numerous occasions last past” had physically assaulted her; that he was possessed of a vile and ungovernable temper and constantly argued with her; and that he consumed intoxicants to an excessive degree. In his cross-bill for divorce, the husband alleged that the wife was quarrelsome and abusive toward him; she told him she no longer loved him; and that the wife did not properly care for their home or prepare him meals regularly; and that she did not properly care for the child born of the marriage.

According to the wife, the parties lived together until November 21, 1970, at which time the husband beat her up pretty badly with his feet and hands causing bruises on her back and head. At that time he was drinking “pretty bad.” The beating was precipitated by an argument about their unmodern house. The following Monday, the wife went back to husband and continued “to cohabit and live with him” until September 10, 1971. In the latter month the husband struck her, was drinking “and he wasn’t at home at nights like he should be.” The wife lived with her parents for a time after the separation in 1971. In this posture, the husband claims that there was a condonation by the wife of his conduct occurring, as he says in November, 1970, after which the wife went back to him. The claim overlooks the testimony of the wife as to the husband striking her in September, 1971, after which the parties parted company. These facts have the effect of reviving the original November, 1970, grievance. Schuler v. Schuler, 290 S.W.2d [105]*105192, 197[7] (Mo.App.1956). The whole of the evidence in this respect is conflicting, and deference must be therefore accorded the trial court in the resolution of the issue. Cox v. Cox, 488 S.W.2d 275, 276[1-4] (Mo.App.1972). The trial court did not err in granting a decree of divorce to the wife upon her evidence, and of course the court was not required to believe the evidence of the husband as to his exemplary-conduct during the marriage.

On the original hearing, the testimony concerning the fitness of the parties to have custody of the minor child was this: The parties lived in a trailer home, which was not modern, near the husband’s parents. The wife had to carry the water from outside to it, and the husband did not help her. According to the husband, the wife took care of the baby very poorly, letting him go for hours with dirty and wet diapers. She did not keep the house clean. If he were awarded custody of the child, the two would have lived with his parents who had a five room modern home on 5 acres. The husband had a younger brother, age 21, who also lived with his parents.

The husband’s uncle testified that he visited the home of the parties on two occasions. On the first occasion he saw clothes piled on the divan and the living room was more or less a shambles. In the kitchen there were dishes piled on the table and stove. The baby was dirty and wet, and was not changed for three hours that he was there. Later he visited the trailer home which was on the 20 acres owned by the husband’s parents specifically to see the baby. The house was dirty and there were dishes sitting around on the cabinets. The baby was dirty and had not been changed for some time — it was soured and had a bad odor. The aunt testified also to the effect that the house was a mess.

The husband’s father testified that the house was always dirty and filthy; that the wife took no care of the house, did not cook meals, and left dishes and food out. He had seen the child wear the same diaper for 24 hours. The husband’s mother’s testimony was also that the home was filthy, with dead mice on the floor, and the child was not cared for.

The wife’s school records were produced showing that her I.Q. tests given her on two occasions showed 79 to 62. The State Department of Education standard is that an I.Q. of 59 to 78 is the classification for “educable mental retarded.” She dropped out of school at the age of 16 after 6 years in a specialized class. Her father testified that the type of education was for sewing, cooking and care of a home.

Deputy Sheriff Edson was called to the wife’s parents’ home in Carroll County concerning the husband’s visitation privileges. He saw the baby and it appeared to him to be well and cared for.

The wife denied that she ever let the baby go dirty. It was not easy keeping the unmodern house because she had to carry water, and the husband did not assist her in any way. She denied that there was a dead mouse on the floor of the home as testified to by the husband’s mother.

On the husband’s motion, the court ordered the wife to submit to a physical and mental examination pursuant to § 510.040, RSMo 1969, V.A.M.S. (and Rule 60.01 V. A.M.R.). The wife did so, and although there was a request, no report of the examining physicians was supplied to her.

The hearing was resumed on May 29, 1973, and the testimony, more relevant in point of time to the court’s final order of custody and thus to the fitness of the parties to have the custody of the child, showed these facts: The husband’s parents were steadfast in their desire to care for the child in their home where the husband [106]*106still resided. During the weeks after December, 1972, when the child was visiting the husband in their home, the child used “just terrible language. It is just sickening. It makes you sick to listen to the language that the child uses.” On visits, the child did not have more than one change of clothing sent with him for a weekend.

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Related

Allcorn v. Allcorn
241 S.W.2d 806 (Missouri Court of Appeals, 1951)
Paxton v. Paxton
319 S.W.2d 280 (Missouri Court of Appeals, 1958)
Green v. Green
240 S.W.2d 741 (Missouri Court of Appeals, 1951)
Schuler v. Schuler
290 S.W.2d 192 (Missouri Court of Appeals, 1956)
Flickinger v. Flickinger
494 S.W.2d 388 (Missouri Court of Appeals, 1973)
E____ (S____) v. E____
507 S.W.2d 681 (Missouri Court of Appeals, 1974)
Cascio v. Cascio
485 S.W.2d 857 (Missouri Court of Appeals, 1972)
Chilcutt v. Baker
384 S.W.2d 854 (Missouri Court of Appeals, 1964)
Cox v. Cox
488 S.W.2d 275 (Missouri Court of Appeals, 1972)

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Bluebook (online)
523 S.W.2d 103, Counsel Stack Legal Research, https://law.counselstack.com/opinion/i-v-i-moctapp-1975.