Ballou v. Ballou., 3722.
| Decision Date | 06 April 1948 |
| Docket Number | No. 3722.,3722. |
| Citation | 58 A.2d 311 |
| Parties | BALLOU v. BALLOU. |
| Court | New Hampshire Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Cheshire County; Wheeler, Judge.
Libel for divorce by John L. Ballou against Bessie B. Ballou, who filed a cross-libel for divorce. Decree dismissing the libel, granting libelee a divorce, awarding her the custody of the parties' minor children, ordering libelant to pay $15 a week for the children's support, and awarding libelee $3,500 alimony, and libelant brings exceptions.
Exceptions overruled.
Libel for divorce, alleging extreme cruelty to which the libelee by way of answer filed a cross-libel on the grounds of extreme cruelty. After hearing, the court dismissed the libel and granted a divorce to the libelee. The care, custody and education of their minor children was awarded to the mother and the father ordered to pay fifteen dollars a week for their support. The mother was also awarded thirty-five hundred dollars ‘in full for all alimony’ and the libelants' real estate was ‘disencumbered of all right and claim of the said Bessie B. Ballou’ upon payment of this sum.
Libelant's exceptions to the finding of extreme cruelty, the decree and the amount of the alimony were allowed and transferred by Wheeler, J.
Earl Brennan, of Keene, for libelant.
Roy M. Pickard, of Keene, for libelee.
The record discloses a turbulent and stormy marriage career of several years' duration accompanied by assaults, threats and unfounded accusations. Although the evidence is otherwise conflicting and contradictory, the parties concede and the record demonstrates that a reconciliation was hopeless. The Trial Court heard and observed the parties and their witnesses and was in a better position to judge their credibility than an appellate court which reads about it. In domestic relation cases testimony of the parties may be unconsciously colored by emotion and consciously slanted by vindictiveness. To distinguish fact from assertion frequently requires the delphic powers of a judicial Solomon and the attainment of that objective should not be unduly diluted in the process of appellate review. The trial judge could disbelieve the libelant's testimony, believe the libelee's, and enter the decree which he did. Franklyn v. Franklyn, 93 N.H. 90, 35 A.2d 801. The ‘dismissal of the libel * * * included a finding that the plaintiff had not sustained his burden of proof.’ Beasley v. Beasley, 93 N.H. 447, 448, 43 A.2d 154, 155. ‘Nevertheless we have satisfied ourselves that all the material findings objected to were amply sustained by the testimony, provided it be conceded, as it must be that the trier of the fact may determine which of conflicting testimony is credible * * * and that he may draw inferences as to human feelings and motives after hearing the witness testify.’ Dubreuil v. Dubreuil, 93 N.H. 14, 15, 34 A.2d 305, 306.
This does not mean that the Trial Court's discretion is completely unfettered, R.L. c. 369, § 2, but it does mean that its findings are binding where ‘* * *...
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...and their witness and was in a better position to judge their credibility than an appellate court which reads about it.' Ballou v. Ballou, 95 N.H. 105, 58 A.2d 311, 312. It is the plaintiff's position that even if the Trial Court's findings are justified, compensation is allowable under the......
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