Miskimen v. Miskimen

344 S.W.2d 289, 1961 Mo. App. LEXIS 649
CourtMissouri Court of Appeals
DecidedMarch 6, 1961
DocketNo. 23284
StatusPublished
Cited by4 cases

This text of 344 S.W.2d 289 (Miskimen v. Miskimen) 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
Miskimen v. Miskimen, 344 S.W.2d 289, 1961 Mo. App. LEXIS 649 (Mo. Ct. App. 1961).

Opinion

CROSS, Judge.

In this case plaintiff Vanda Pearl Mis-kimen sues her husband, the defendant Clifford Ray Miskimen, for a divorce on the ground of alleged indignities. Defendant filed a cross petition but dismissed it before trial. He appeals from the trial court’s judgment granting plaintiff a divorce and allowing her $300 for attorneys’ fees, contending that plaintiff failed to show that she was the innocent and injured party and failed to establish a cause of action.

At the time of trial plaintiff was 77 years old. Defendant’s age was 69 years. They were married in 1945, plaintiff then being a widow — defendant a widower. In 1949, they purchased and moved to an 11-acre farm near Belton, Missouri. They lived there until the separation in 1960. No children were born of the marriage. Plaintiff has no living children, but has grandchildren and great grandchildren. Defendant has two married daughters.

Both parties receive social security benefits. They jointly own the Belton farm, two promissory notes and a Dodge automobile, At the time of the separation they had a joint bank account in which plaintiff had deposited her separate funds. She then withdrew less than half the amount on deposit. She also took with her the Dodge automobile, which had been bought for her use. Both parties had contributed to the purchase price of the car.

Plaintiff took care of the house, prepared the meals and took care of defendant’s clothing, which she washed and ironed. She helped with the farm work. She has driven the tractor, helped put baled hay in the barn loft, assisted in feeding the cows and hogs, done work in the garden, fed chickens and gathered the eggs, and delivered eggs on the egg route.

In February, 1958, plaintiff suffered the rupture of a blood vessel and bleeding in her left eye. She was examined by Dr. Doane, a physician, who found that the blood vessel rupture was caused by high blood pressure and hypertension with cardiovascular disease verging on a stroke. Plaintiff continued under his observation and treatment after that date. Her condition responded to medication except at times of emotional stress. Dr. Doane testified that plaintiff’s high blood pressure was caused by emotional strain, which was dangerous to her life, could cause a stroke, paralysis, or her death. He advised plaintiff it was imperative that she have no emotional upsets whatsoever.

Plaintiff testified that on January 3, 1957, defendant told her to “shut” her “GD- mouth” and struck her on the face. It was a forceful blow, delivered in anger, and caused her face to swell and discolor. It was “kind of yellow the next day”. She had headaches after that for a week or more, suffered extreme elevation of her blood pressure and sought medical treatment. She left defendant on January 9th, six days later. She recalled other' things defendant had done to her. Once, in 1959, after plaintiff told defendant some of her things were missing, “he jumped out of his chair with his fist and made like he was going to come and strike me, but he stopped [291]*291after two steps and he told me to get my things and get out of there * * On another occasion defendant threw a dead snake toward her because he knew she was afraid of snakes. Another time he said “he should get a snake and make a tie for me”. He would also throw a fishing worm, at her or drop it in her hand, although he knew “she was as scared of fishing worms as snakes”. He so testified. One time, when they were playing cards, defendant said to his daughter that “he should take an axe and cut the hide to let the light in I was so damn goofy”. When plaintiff’s sister came to the house defendant wouldn’t speak to her and ignored her. At first plaintiff’s friends and relatives came to visit her, but they quit coming. One time he took a hammer to bed. That scared plaintiff again, and she asked why he had the hammer, but he never told her. One Saturday afternoon defendant brought a neighbor woman and her grandson to the house and told plaintiff they were going to stay all night. They did so. Next morning, in their presence, defendant ridiculed and found fault with plaintiff. It hurt her and she went into the other room and cried. One night after plaintiff and defendant had gone to bed, defendant’s daughter came upstairs, put both hands on plaintiff’s neck and said “I could choke you”. Defendant said nothing and made no remonstrance. Plaintiff bought a piano with her own money. Whenever she would attempt to play it, defendant would tell her to stop that noise and turn on the television. He would play the television so loud “sometimes you couldn’t hear yourself even think”. He falsely accused her of taking the two jointly owned promissory notes. When plaintiff was driving the tractor between the years 1949 and 1951 and 1952, she couldn’t turn to suit him, defendant called her a “damn fool” and told her she had no sense and said she was “so damn stupid”. Plaintiff testified: “I knew I was in danger after he hit me like that and I didn’t know what to do”. When asked if she were afraid to return to her home at Belton, she stated: “Oh, land! Yes, sir, after he went after me I wouldn’t go again”.

Alan Hensler is a grandson of plaintiff and division manager of the A. S. Aloe Company. He testified that he would visit plaintiff, together with his wife and three children (plaintiff’s great-grandchildren). He has heard defendant call his grandmother “an idiot and stupid”. The last time they were at her home was New Year’s of 1957. When Hensler, his wife and children walked in, defendant was sitting on the divan. Hensler said “Hello” but got no response from Mr. Miskimen. “There was no conversation at all took place and my wife received the severest of looks and we turned and left”. They never went back after this incident. The children were reluctant to return.

Mrs. Gladys Turpin knew the parties, having lived next door to them for three years. In January, 1960, she saw a bruise and swelling on plaintiff’s face and learned that Mr. Miskimen had struck her.

Defendant testified and admitted he struck plaintiff “a good stinging blow with the open hand’ but not with his fist. The particular place where he struck her was where he had seen blood shoot out of her eye as the result of the blood vessel rupture in 1957. He stated she had been “complaining about my daughter to me”. She had not sworn at him but used some “cuss words” after he hit her. Defendant admitted he never apologized for striking his wife. He denied making any threats of violence to plaintiff on any other occasion. Mr. Miskimen admitted throwing the snake toward plaintiff and frightening her with worms. He knew that plaintiff was suffering from and receiving medical treatment for “high blood pressure and cardiac trouble and one thing and another”, from 1957 to 1960. He admitted he knew that condition was aggravated with increased tension. He stated that at first his younger daughter “resented” plaintiff, but that the friction “wore out” as far as his daughter was con[292]*292cerned; that his wife complained frequently about his daughters, and that “it was just a continuous subject for her to be nagging about”. Defendant denied having restrained visitors from the house. When defendant was asked if he would say he had a happy and fairly normal married life except for “these complaints about your daughter” he said, “Well, no sir, I couldn’t say that it was * * *.” Defendant also testified that, in his opinion he and plaintiff could no longer live together in peace and harmony.

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488 S.W.2d 275 (Missouri Court of Appeals, 1972)
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401 S.W.2d 505 (Missouri Court of Appeals, 1966)
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Bluebook (online)
344 S.W.2d 289, 1961 Mo. App. LEXIS 649, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miskimen-v-miskimen-moctapp-1961.