Bonham v. Bonham

• Decision Date: 02 May 1918
• Docket Number: 895
• Parties: BONHAM v. BONHAM
• Court: Wyoming Supreme Court

172 P. 333

25 Wyo. 449

BONHAM v. BONHAM

No. 895

Supreme Court of Wyoming

May 2, 1918

ERROR to District Court, Sheridan County; HON. E. C. RAYMOND Judge.

Action by Virginia A. Bonham against Alfred E. Bonham for divorce. Judgment for defendant and plaintiff brings error.

Affirmed.

F. W Byrd, for plaintiff in error.

Divorce is sought on the grounds of extreme cruelty. The evidence showed that defendant's acts of cruelty toward plaintiff had continued for many years and had so impaired the health and peace of mind of the plaintiff that she could not tolerate it any longer, hence this action for divorce. The evidence showed that defendant had been arrested for burglary. The modern rule defining extreme cruelty is clearly set forth in 9th Am. & Eng. Anno. Cases, 1091, as being unjustifiable conduct which grievously wounds the mental feelings of the other spouse, and if it seriously impair the bodily health, or destroys the legitimate ends of matrimony even though no personal violence be inflicted, it is extreme cruelty. We submit that the record in the present case brings it clearly within the rule, and that the court erred in not granting plaintiff a decree.

R. E. McNally and D. L. Gogerty, for defendant in error.

The allegations of the petition were not sustained by the evidence. As to defendant's motion for counsel fees and alimony, it will be noted that her application made below for counsel fees and alimony was denied for the reasons set forth in the record. The trial court terminated the case and denied the relief because of insufficiency of evidence, and that judgment should not be disturbed, unless manifestly wrong. (Cummins v. Cummins, 66 N.W. 858; Shuster v. Shuster, 92 N.W. 206; Blair v. Blair, 54 P. 364.) This is especially true in cases brought on the ground of mental cruelty. (Andrews v. Andrews, 52 P. 299; Fleming v. Fleming, 30 P. 567.) The trial court can the better judge the merits of the case having observed the appearance and demeanor of the witnesses. (Hale v. Hale, 135 P. 481; Dyer v. Dyer, 118 P. 634; Guerin v. Guerin, 88 P. 928; McDonald v. McDonald (Cal.), 102 P. 927; Avery v. Avery, 82 P. 967.) There was no corroboration and this is necessary under our statute. (Comp. Stats. 1910, Sec. 3947.) Plaintiff's testimony revealed many commendable traits of the defendant, and while it also showed him to be possessed of certain faults and shortcomings, they do not appear to have been greater than that of the average person. Much of plaintiff's testimony was frivolous and not deserving of consideration. The burglary charge was dismissed for insufficiency of evidence. (Appeal of Nye, 17 A. 619.) The judgment of the court below should be affirmed.

POTTER, CHIEF JUSTICE. BEARD, J., and BLYDENBURGH, J., concur.

OPINION

POTTER, CHIEF JUSTICE.

This is an action for divorce brought by Virginia A. Bonham against Alfred E. Bonham. The plaintiff asks in her petition also that a reasonable portion of the property held in defendant's name be awarded to her. At the conclusion of plaintiff's evidence the court rendered a decision and judgment in favor of the defendant; this appearing to have been done without a motion or suggestion on the part of the defendant. The court found that the plaintiff had wholly failed to establish any ground for divorce, or any need for the intervention of the court in adjusting the property rights of the parties. The case is here on error, and the only question presented is the sufficiency of the evidence to sustain the finding and judgment denying plaintiff's right to a divorce.

The parties were married September 8, 1875, and lived together until February 9, 1915, when the plaintiff left the defendant and their home in Sheridan, in this state, and established another home in the same city for herself and a married son, referred to in the evidence as Will, with his five children, who had been making their home with the plaintiff and defendant for several months preceding the separation. That son appears to have had some trouble with his wife, and with his children he came to live with his parents, the parties to this suit, with their consent at the time. The defendant, after a few months, objected to his remaining there at his home with the children, and this seems to have been the chief cause of the difficulty between the plaintiff and defendant resulting in their separation; the plaintiff defending the son and insisting that he and his children be not compelled to leave the house.

It is alleged as ground for divorce that defendant had been guilty of extreme cruelty to the plaintiff. No act of physical or personal violence is alleged or shown. But the charge of cruelty is based upon certain alleged conduct of the defendant during the married life of the parties, and particularly the last year or two of their life together, consisting principally of occasional outbursts of anger over matters displeasing to him, accompanied by profane language; the defendant having a "miserable temper" as stated by the plaintiff in her testimony; habitual complaints and exhibition of anger upon a presentation of bills for living expenses; threats on one or two occasions when angry to kill himself; accusing the plaintiff of lying to him, the defendant, on one or two occasions during a disagreement concerning the son aforesaid and his failure to secure employment, or when he was angrily complaining about some other matter; during the earlier years of their marriage violently beating his horses; complaining at one time about the plaintiff's wanting and having a special nurse when she was in the hospital for an operation; and one act of violence toward a son then about twelve years old, several years before their separation, when he was angered about something the boy had done. We have not attempted to mention every instance mentioned in the testimony of the exhibition of anger by the defendant during the married life of the parties, but what we have stated indicates generally the facts upon which the plaintiff bases her charges of cruelty. It appears from the testimony of the plaintiff that these outbursts of anger were not as a rule directed toward her. Indeed in very few instances is it shown that the defendant exhibited any anger toward her or because of anything she had or had not done.

There are other acts alleged and testified to by the plaintiff which she says occurred during the early years of their married life, some of which are not at all corroborated and bear no relation to defendant's subsequent conduct complained of, and some shown only by his alleged admission to the plaintiff, such as at one time prior to their marriage that he had been a member of a vigilance committee in Colorado, all of which occurred so many years prior to the separation and are so clearly unrelated to anything occurring subsequently, that they are not entitled to consideration. One act of the defendant is alleged and testified to by the plaintiff, with some corroboration by other witnesses, as having occurred a few months prior to the separation. It is alleged and the plaintiff testifies that a few months prior to the separation the defendant, taking to his assistance an unmarried son then living with him, and the married son above mentioned, removed certain furniture of a tenant from one of his houses, and brought the same to the house where he, the defendant, was living, destroyed some of it and attempted to secrete the remainder; and it is sought by the evidence as to that matter to show that the defendant had burglarized the house and stolen the furniture. But it appears from the plaintiff's evidence that the defendant, after having been arrested, was discharged upon a preliminary hearing before the examining magistrate, and that the furniture which had been taken from the defendant's home upon a search warrant was returned to him by order of said magistrate. And there does not appear to have been any further attempt to hold or prosecute him.

The married son, about whose presence in the home the parties disagreed, testified against his father on his said examination, and the plaintiff offered or was willing to testify against him at that hearing, and she appears to have been very indignant over his discharge, showing her resentment to such an extent as to assert in her testimony that the defendant had "bought off" the prosecuting attorney and examining magistrate, and apparently without anything to justify the assertion except the fact that the prosecuting attorney had not immediately authorized a search warrant when requested to do so, and that defendant was not bound over or held for trial on the charge against him. And it appears also from the plaintiff's testimony, on cross-examination, that shortly before the hearing aforesaid she had gone to the county and prosecuting attorney proposing or suggesting that the defendant be tried on a charge of insanity; but she explained that she first went to the family doctor and he told her to go to the county attorney. She further testified about that as...