Bell v. Bell, 9692

• Decision Date: 10 July 1958
• Docket Number: No. 9692,9692
• Citation: 133 Mont. 572,328 P.2d 115
• Parties: Elizabeth BELL, Plaintiff and Appellant, v. David BELL, Defendant and Respondent.
• Court: Montana Supreme Court

Page 115

328 P.2d 115

133 Mont. 572

Elizabeth BELL, Plaintiff and Appellant, v. David BELL, Defendant and Respondent.

No. 9692.

Supreme Court of Montana.

July 10, 1958.

Michael J. Whalen, Franklin S. Longan, Billings, Lee B. Farr, Miles City, for appellant.

Michael J. Whalen, Franklin S. Longan, Arnold A. Berger, Billings, argued orally for appellant.

Bernard E. Longo, Wm. R. McNamer, Billings, for respondent.

Bernard E. Longo, Billings, argued orally for respondent.

HARRISON, Chief Justice.

Elizabeth and David Bell were intermarried at Billings, Montana, in 1932. Three children were born of this union, two being of age and Robert, the youngest, being seventeen years old when this suit was filed.

On February 15, 1952, Elizabeth Bell instituted an action for divorce against David Bell.

The Pleadings. In her amended complaint plaintiff alleged that for more than one year preceding the filing thereof the defendant had inflicted grievous mental suffering and physical injuries upon the plaintiff, and had been guilty of a course of conduct toward plaintiff which was of such a nature as to destroy the peace of mind of plaintiff and defeat the legitimate objects of the marriage. The plaintiff then alleged the necessity for $500 attorneys' fees and $200 monthly alimony pending outcome of the suit.

On November 13, 1954, Judge Flachsenhar made and entered an order granting plaintiff $300 attorneys' fees and $150 a month alimony pending the final adjudication. Prior to that time he had made another order granting plaintiff $300 attorneys' fees; thus the total attorneys' fees granted was $600. On November 22, 1954, the defendant filed his answer in which he admitted the marriage; that it was necessary for plaintiff to engage counsel to prosecute the action; but, alleged that he had already paid her $600 in attorneys' fees, and denied each and every other allegation in the amended complaint.

By way of cross-complaint, defendant alleged that plaintiff had been guilty of inflicting grievous mental cruelty upon him for more than one year preceding the filing of the complaint; that she had inflicted or threatened to inflict grievous bodily injury dangerous to life upon his person; that she had repeatedly inflicted or threatened bodily injury and personal violence upon him, which course of conduct justly and reasonably was of such a nature and character as to destroy the peace of mind and happiness of the defendant, to entirely defeat the proper and legitimate objects of marriage, and to render the continuance of the marriage relation between the parties perpetually unreasonable and intolerable to the defendant; that defendant is the fit and proper person to have the care, custody and control of the minor child, Robert.

On the same day the answer and cross-complaint were filed, defendant moved the court upon affidavit for the issuance of an injunction pendente lite to restrain plaintiff or her agents from depriving him of the use of the furniture, fixtures, appliances and furnishings of the home formerly occupied by the plaintiff and defendant, with the exception of the sewing machine.

The grounds for issuing the injunction were alleged as follows: That the plaintiff had surreptitiously entered the home of the prties, removed all of the furniture, and poured lubricating oil over the wall-to-wall carpeting, valued at $1,600; that taking the furniture from the dwelling house would breach the sales contracts under which the furniture was purchased and put defendant in immediate default; that if the furniture was not immediately returned he would be defaulted in his payments and suffer great and irreparable injury; that defendant was not financially able to replace the furniture and furnishings so taken; that defendant was afraid that plaintiff, if not restrained from so doing, would sell the furniture and furnishings to the great and irreparable injury of the defendant.

An injunction order pendente lite was issued on November 22, in accordance with the prayer of the defendant, requiring defendant to file a $1,000 bond and ordering him to serve a plaintiff with a copy of the affidavit and order.

The Honorable W. W. Lessley was called in to preside in this action on January 22 1955, and on January 24 he accepted jurisdiction.

On April 16, plaintiff made application for augmentation of attorneys' fees in the sum of $750.

It should be noted that until November 19, 1954, plaintiff was represented by Joseph P. Hennessey, Eq., but on that day he withdrew from the action. Plaintiff then sought the legal services of Farr and Farr of Miles City, and Michael J. Whalen, of Billings, who represented her thereafter.

On June 15, 1955, defendant filed an amended and supplemental answer and amended and supplemental cross-complaint conforming in most particulars to the first answer and cross-complaint hereinbefore set forth, except it added the further allegation that plaintiff had committed adultery.

Reply was filed on July 5, putting in issue the affirmative defenses and cross-complaint contained in the answer, and on August 3, the cause came on for trial.

The Evidence. Plaintiff's testimony in her own behalf upon her case in chief was to the effect that the defendant had upon several occasions struck her, vilified her with vile, vulgar and profane names, and had unjustly accused her of marital infidelity; that she loved her children and neither drank nor frequented bars; that as a result of the physical verbal and mental abuse from defendant she became nervous and upset and sought the services of Dr. Ruona, a psychiatrist, who was visited by plaintiff and defendant and advised hospitalization for the plaintiff; that she was hospitalized for about two months; that after she returned home from the hospital, the defendant again resumed his verbal abuse of her, and again made threats of physical violence against her person; that because of her nervous condition she was not supposed to work; and that he needed as living expenses at least $200 a month.

On cross-examination of the plaintiff, the following testimony was elicited: That she had visited Canada in the company of a man, not her husband, allegedly for the purpose of helping him with his horses; that she stated she did not drink; that she visited bars but did not drink at them; that she only went to the Empire Bar to eat. However, alimony checks were introduced in evidence showing that she had cashed them in the Mint Bar, the Empire Bar and the Shamrock Bar.

On cross-examination with reference to her relationship with one Cal Rentz, plaintiff testified in part as follows: That she had met Rentz the previous fall; that when she wanted to go someplace she would have him drive her there; that she could not remember whether she had frequented bars or gone out with him alone in the evenings.

Leah Bell, defendant's sister-in-law, testified she saw defendant strike the plaintiff during an altercation at the Shiloh School, and another time at the Eagles Club in Billings; that she had seen the defendant in the company of other women, and had heard defendant abuse the plaintiff with vile and vulgar names and accusations. Both of the instances testified to by Leah Bell, wherein defendant purportedly struck the plaintiff, were contradicted by testimony of defendant's witnesses.

Dr. M. A. Ruona testified that plaintiff had come to him for treatment and had been under his care since January 29, 1954; that she was hospitalized from February 8 to April 3, 1954, for a functional nervous disorder, and was given intensive psychiatric and mechanical therapy, shock and insulin treatment, electro-shock treatment and medication. At the termination of her hospitalization, the defendant was advised by Dr. Ruona that his wife had to be handled carefully and not be emotionally disturbed. Her condition worsened after the termination of her hospitalization.

Although having previously denied it, upon rebuttal, plaintiff admitted she had hit the defendant with a shoe on one occasion and with a broom on another; that Cal Rentz had been persistent in his attempts to be 'fresh' with her; that she had frequented bars in his company, but finally terminated their relationship because he drank too much. The reason given for her frequent trysts with Rentz was that she was without transportation; that he was an 'employee' of hers and drove her wherever she wished to go in return for her purchasing the gas and oil for his automobile.

Plaintiff's son, Donald, testified that when Rentz visited the house the plaintiff stated he was a 'salesman'. Another of her children stated she referred to him as a 'lawyer'.

Various witnesses on behalf of the defendant testified to having seen plaintiff and Rentz at bars, stores, restaurants, in his car, and at night clubs.

Defendant hired a private detective, who after failing to keep up with the Rentz automobile, finally stayed in a room at the Alexandra Hotel in Billings next to the room where the plaintiff and Rentz spent the entire evening together. This testimony was corroborated by Mr. McClurg, the detective's assistant.

Mildred Lenhardt, switchboard operator at the Custer Hotel, testified to the plaintiff having a male visitor during her stay at the Hotel.

Janet Reiter, daughter of the parties, testified that there were constant arguments over mere incidental things of everyday life; that in addition to her mother arguing with the defendant, plaintiff constantly argued with her and all the other members of the family; that on one occasion when the plaintiff came home smelling of intoxicating drink, plaintiff got angry with her husband for having spilled coffee on the floor, and started to upbraid him; that during the altercation plaintiff threw a shoe at the defendant. She also testified to plaintiff's drinking at the Eagles Hall, and that her mother was intoxicated and had drank in their home at night.

Robert Bell testified in part, as follows: That...