Waters v. Waters

357 S.W.2d 233, 1962 Mo. App. LEXIS 730
CourtMissouri Court of Appeals
DecidedMay 15, 1962
DocketNo. 30987
StatusPublished
Cited by4 cases

This text of 357 S.W.2d 233 (Waters v. Waters) 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
Waters v. Waters, 357 S.W.2d 233, 1962 Mo. App. LEXIS 730 (Mo. Ct. App. 1962).

Opinion

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 * * * ”; [234]*234that 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' [235]*235when 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.

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Related

Forrest v. Forrest
503 S.W.2d 80 (Missouri Court of Appeals, 1973)
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447 S.W.2d 308 (Supreme Court of Missouri, 1969)
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437 S.W.2d 153 (Missouri Court of Appeals, 1968)
O'Leary v. O'Leary
385 S.W.2d 346 (Missouri Court of Appeals, 1964)

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Bluebook (online)
357 S.W.2d 233, 1962 Mo. App. LEXIS 730, Counsel Stack Legal Research, https://law.counselstack.com/opinion/waters-v-waters-moctapp-1962.