Spainhower v. Spainhower

441 S.W.2d 755, 1969 Mo. App. LEXIS 641
CourtMissouri Court of Appeals
DecidedMay 20, 1969
DocketNo. 33168
StatusPublished
Cited by5 cases

This text of 441 S.W.2d 755 (Spainhower v. Spainhower) 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
Spainhower v. Spainhower, 441 S.W.2d 755, 1969 Mo. App. LEXIS 641 (Mo. Ct. App. 1969).

Opinion

PER CURIAM.

Divorce action in which plaintiff wife founded her claim upon general indignities specifying, among other things, that defendant cursed and swore at plaintiff, frequently struck her; that during their marriage defendant frequently stayed out all night and refused any explanation of where he had been; that defendant frequently told plaintiff to get out of the house, told her that he did not love her, did not want to live with her, refused to support her adequately; that throughout their marriage defendant frequently came home in an inebriated condition; and that thereby her condition was rendered intolerable. Defendant filed his cross-bill, also alleging indignities. The trial court awarded a divorce to plaintiff, together with $60 per week alimony, $625 for attorney’s fees and costs.

The parties were married in March 1938 and except for a brief period when defendant was in flight training, lived together continuously as husband and wife until plaintiff left the family home in August, 1966. When defendant left the Service in 1942 the parties returned to St. Louis and moved into an apartment on Washington Avenue with plaintiff’s mother, plaintiff’s two sisters, Winifred and Hortense, and plaintiff’s brother and his wife. The husband of one of the sisters lived in the apartment also when he was in the City. Plaintiff’s brother and wife moved from the apartment in a short time. Plaintiff’s mother died in 1957.

In 1960 the family moved into a four-bedroom house on Westminster in St. Louis, on which the defendant made a down payment of $1500. According to plaintiff it was defendant’s idea that “all would live together”. At this time the family group consisted of defendant’s [757]*757mother (who stayed only two weeks), plaintiff’s two named sisters (and the husband of one) and the present plaintiff and defendant. Upon moving into the house on Westminster defendant asked plaintiff’s sister Winifred to handle all the finances in connection with the place. Under that arrangement he agreed to pay the sister $60.00 per week, which was to be used for payments on the house, upkeep, utilities and food. In addition he gave plaintiff $20.00 per week. The total of $80.00 per week was not sufficient to cover all the expenses of the house and the balance was made up by the contributions of plaintiff’s two sisters. The defendant was sometimes irregular in making the $60.00 payment and upon such occasions when he did not pay in full any deficit was made up by sister Winifred.

In the last few years before the separation defendant’s regular working hours as a newspaper photographer were from two-thirty in the afternoon to ten or ten-thirty in the evening; although there were occasions when he would be called out much earlier in the day.

The defendant’s laundry was done by the plaintiff and one of her sisters. Meals were prepared by sister Hortense. Owing to his hours of employment the family did not eat meals together regularly but there was always something prepared for the defendant’s dinner and left for him in the refrigerator at home.

Plaintiff’s testimony as to defendant’s conduct is hereinafter stated in the chronological order of the events described:

Both plaintiff and her niece by marriage, Mrs. Clark, testified as to the earliest incident stated in the record, which occurred “about 1960” when plaintiff and defendant were scheduled to go out for the evening together. Upon this occasion the defendant arrived home three hours late and very inebriated. Plaintiff was ready to go out. However defendant went to bed and slept for a time. When he came down he insisted on going out but plaintiff refused to go with him while in such a condition. Thereupon defendant attacked plaintiff while the latter was on a divan. The niece testified that defendant was trying to choke plaintiff. “He more or less had one of his knees in her stomach and was slapping around at her face and choking her, and the two of us couldn’t pull him off. Q. You and who else? A. Hortense. Q. You tried to pull him away? A. And he knocked me back into the floor * * *. My [sick] husband heard it and got up and came down and pulled him off.”

Prior to the two-year period before separation, plaintiff never knew when defendant would get home, and when he came home late in the mornings “ — lots of times six o’clock in the morning — ” he would stumble up the steps and sometimes could not make it up the stairs. Upon such occasions he would lie on the divan at the living room level and sleep there. This kind of thing occurred two or three times a month in that period and became more frequent within the last two years before separation.

At two years prior to separation defendant used vulgar language and cursed and swore at the plaintiff.

“Q. Would you tell the court when or how often this occurred? A. Mostly when he came home at nights when he had been drinking.
Q. How often or how frequently?
A. Two or three times a week.
Q. Would you tell us what words or language he’d use?
A. I would be sound asleep and he would come home, be drinking, and he’d call me a bitch; and I was home in bed.
* * * * * *
Q. And when he’d come home that way, he’d use this language to you?
A. Yes, sir.
[758]*758Q. What other words or language did he use to you besides calling you the bitch that you mentioned?
A. Mostly that, but then he would tell me to get out and find a good lawyer, because he was going to take bankruptcy and burn the house down, for me to get out.”

Plaintiff was asked how often her husband struck or hit her or did something physically to her in the last year before they separated and she answered, “Oh, possibly five or six times”.

“Q. What did he do on those occasions, would you describe that?
A. He’d grab me around my neck and hold my hand and rub my nose all over my face.
Q. Is this usually what he did, the same thing each time?
A. I have had black eyes before that.
Q. How many times have you had black eyes?
A. About four.
Q. In the last two years. Did you have other portions of your—
A. Yes.
Q. What kind of marks?
A. Mostly my nose was black and blue and I’d have blue marks on my neck.”
******
Q. * * * did you ever fight with him and strike him?
A. I fought back.
Q. Did you ever initiate or start any fights or striking him?
A. No.
Q. What would you do when he’d push your nose in?
A. I’d try to get away from him and I’d scratch him.
Q. Now, what effect, if any, did this have on your nerves or your health, Mrs. Spainhower, his coming home and drinking and cursing and fighting with you?
A.

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Bluebook (online)
441 S.W.2d 755, 1969 Mo. App. LEXIS 641, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spainhower-v-spainhower-moctapp-1969.