Bickford v. Bickford

• Decision Date: 18 May 1933
• Docket Number: 7057.
• Citation: 22 P.2d 306,94 Mont. 314
• Parties: BICKFORD v. BICKFORD.
• Court: Montana Supreme Court

22 P.2d 306

94 Mont. 314

BICKFORD v. BICKFORD.

No. 7057.

Supreme Court of Montana

May 18, 1933

Rehearing Denied June 8, 1933.

Appeal from District Court, Madison County; Benjamin E. Berg, Judge.

Divorce action by Elmer Bickford against Mina Bickford, who filed a cross-complaint. From a judgment granting plaintiff a divorce, defendant appeals.

Affirmed.

Harry Meyer and William Meyer, both of Butte, for appellant.

M. M Duncan and Frank E. Blair, both of Virginia City, for respondent.

ANDERSON Justice.

Plaintiff brought this action against the defendant, his wife, to secure a divorce upon the ground of extreme cruelty. The defendant answered denying the allegations of cruelty, and by cross-complaint sought a divorce from the plaintiff upon the same ground. Plaintiff by reply denied the allegations of cruelty in the cross-complaint. The cause was tried before the court without the aid of a jury.

Plaintiff in his complaint, after alleging the marriage of the parties on July 5, 1930, and the residence in the state for more than one year, alleged "that the defendant has been and now is guilty of extreme cruelty by a course of conduct toward and treatment of the plaintiff, which said course of conduct has existed and been by the defendant persisted in for a period of more than one year immediately next preceding the commencement of this action, *** which justly and reasonably is of such a nature and character as to destroy the peace of mind and happiness of this plaintiff, and to render a continuance of the marriage relation between them perpetually unreasonable and intolerable to this plaintiff, and entirely to defeat the proper and legitimate objects of the marriage of the parties to this action."

Following these allegations, plaintiff alleged specifically that "defendant did upon many and various occasions quarrel bitterly with the plaintiff and without sufficient or any reason therefor. That during all of said period of time the defendant has been dissatisfied with her married life with plaintiff and has exhibited her dissatisfaction both publicly and privately ***; that upon numerous occasions during said period of time defendant has directed vile and abusive epithets toward the plaintiff."

Plaintiff further alleged that defendant placed a pistol against his neck and tried to shoot plaintiff; that upon the failure of the gun to fire, she struck plaintiff a blow with the gun that she instituted a suit for divorce against plaintiff on July 11, 1931, without sufficient or proper reason, which suit was dismissed upon plaintiff's forgiveness; and that a few months thereafter the defendant, without warning, left the home of the plaintiff and refused to return.

Immediately following the marriage of the parties, the defendant departed for Chicago and remained there until September, 1930. On the return of defendant to Montana plaintiff and defendant began living together at Sheridan, and though they had numerous quarrels over various matters, they continued to live together until July, 1931, when defendant left the plaintiff and commenced her divorce action in Silver Bow county against the plaintiff upon the ground of extreme cruelty. Upon the sudden death of the mother of the plaintiff, soon after the commencement of this action, the defendant immediately returned to the plaintiff, and the parties resumed their domestic relations, with continued quarreling, after a brief respite, until November 3, 1931, when the defendant refused to live with plaintiff.

The trial court made findings of fact in accordance with the allegations of the complaint and determined all the issues in favor of the plaintiff. The court further found that the allegations of defendant's cross-complaint, or counterclaim, were not supported by the evidence in the case. Judgment was entered on April 2, 1932, decreeing a divorce in accordance with the findings theretofore made. The appeal is from this judgment.

Defendant contends that the complaint does not state facts sufficient to constitute a cause of action. The record discloses that a general demurrer was interposed to plaintiff's complaint. Defendant in her brief asserts that the demurrer was overruled, but the record contains no order or minute entry to that effect. We assume, however, in view of the assertion of the defendant which is unchallenged by the plaintiff, that such was the fact.

"Extreme cruelty" as a ground for divorce is defined by our statute, section 5738, Revised Codes 1921, as amended by chapter 22 of the Laws of 1931. The amendment is unimportant here, as the divorce action was brought immediately upon the separation of the parties. Under the provisions of section 5738, supra, extreme cruelty may consist of three distinct classes of facts, namely: (a) The infliction or threat of grievous bodily injury, or of bodily injury dangerous to life, or repeated infliction or threat of bodily injury or personal violence upon the other party to the marriage; or (b) where the wife is the plaintiff, the repeated publication or utterance of false charges against her chastity by the husband; or (c) the infliction of grievous mental suffering as defined in the statute. Putnam v. Putnam, 86 Mont. 135, 282 P. 855, 858.

Defendant relies upon certain statements in the opinion of this court in the case of Ryan v. Ryan, 33 Mont. 406, 84 P 494. At the time of that decision the statutory definition of "extreme cruelty" did not include either the second or third classes of extreme cruelty as enumerated above.

Manifestly, this complaint was drafted for the purpose of stating a cause of action under the third class, namely, "the infliction of grievous mental suffering as defined in the statute." Putnam v. Putnam, supra. Hence, what the court said in the case of Ryan v. Ryan, supra, is inapplicable here.

It is well recognized by the authorities that an inclusive and exclusive definition of legal cruelty cannot be given. Whether the offending spouse has been guilty of extreme cruelty is to be determined from all of the facts alleged. The particular acts of cruelty of which complaint is made are not in themselves determining factors, but the question is whether the acts of cruelty alleged are of such a nature and character as to destroy the peace of mind and happiness of the injured party. Williams v. Williams, 85...