Gercke v. Gercke

Brace, J. This is an appeal from the judgment of the circuit court of the city of St. Louis, in which the plaintiff was, by the decree of said court, granted a divorce from her husband, the said Henry Gercke, defendant, allowed alimony in gross in the sum of six thousand dollars, one hundred and seventy-five dollars attorney’s fees and pendente lite the appeal thirty-five dollars per month to be credited on the alimony in gross. The defendant appealed not only from the allowance in gross, but from the allowance pendente lite, gave bond, and has paid nothing on account of alimony pending the appeal to entitle him to a credit on the amount allowed the plaintiff in gross, in lieu of alimony. [240] In his brief he says: “The defendant does not seek to disturb the decree of divorce but contends that the award of alimony ought to be set aside,” and the only question presented is whether the allowance in gross in lieu of alimony is excessive. The plaintiff at the date of the trial was fifty-seven years old and in delicate health. The defendant was fifty-four years old, in robust health and engaged in a profitable business. They had been married and had lived' together as husband and wife for about thirty-three years; by their industry and economy the defendant had accumulated an estate estimated to be worth from ten to fifteen thousand dollars. The plaintiff had always faithfully demeaned herself, and discharged all her duties to the plaintiff as his wife ; nevertheless the defendant, as the evidence shows, and as the trial court found, was not only guilty of indignities to her person, by brutal and unprovoked assaults upon her, but of the highest crime against the marital relation, that of adultery. .They have no minor children dependent upon them for support. The trial court found that the value of the estate, real and personal, of the defendant, was thirteen thousand dollars. After a careful review of the qvidence we are satisfied that when this suit was commenced the defendant was possessed of an estate of that value. Soon after it was commenced he put encumbrances on it amounting to thirty-two hundred dollars, and on the trial introduced evidence tending to show that he was otherwise indebted in the sum of about one thousand dollars. The circumstances under which this indebtedness was created, the condition of the defendant’s business at the time, its exigencies and previous history, the unsatisfactory explanation given of the consideration therefor, all tended to raise grave doubts in the mind of the trial r,judge as to its tona Jides, and the evidence so impresses us; and we have little fault to find with a conclusion drawn from all the evidence that, at the time the decree of the circuit court [241] was rendered, the defendant over and above Ms indebtedness was worth about twelve thousand dollars. That decree gives the plaintiff a moiety of the defendant’s fortune. Is it under the circumstances too much ? As before intimated, this fortune represents the joint labor, thrift and economy of thirty-three years of the married life of the plaintiff and defendant. The one equally with the other is the meritorious cause of its existence; by hard work faithfully performed by each, within their respective spheres, it was saved and laid by, from the rewards of their daily labor. They should have gone down to their graves in its mutual enjoyment: that they have not done so, is not the fault of the plaintiff; without fault upon her part, she has by the brutal and unfaithful conduct of her husband been deprived of the fruits of her toil and thrown upon the world with nothing but a little household furniture the value of which is not worth estimating. Her age and the condition of her health is such that she can by her labor do but little towards making a support, and reduces to an inappreciable amount the suggested value of her inchoate right of dower when considered in connection with the age and health of the defendant. The husband is in possession of all the fruits of their joint labor ; he has it invested in real estate and in a profitable and thriving business; he is in the enjoyment of vigorous and robust health, and “making bushels of money,” as he expresses it. ■ Under these circumstances it did not seem to the chancellor that it was anything but fair and just that the innocent, injured, and comparatively helpless wife should have a moiety of this estate, and now after the lapse of more than two years, during which time the defendant has refused to pay the moderate alimony pendente lite his appeal to this court, allowed her by the trial jndge, or to contribute anything to her support, but has put her to the expense and delay of [242] prosecuting two actions through the appellate court in order to get anything, we do not feel disposed to disturb his judgment. The judgment of the circuit court is therefore affirmed. Ail concur.