Boschetto v. Boschetto, 2873

• Citation: 343 P.2d 503,80 Wyo. 374
• Decision Date: 18 August 1959
• Docket Number: No. 2873,2873
• Parties: Margaret BOSCHETTO, Appellant (Defendant below), v. Ben BOSCHETTO, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 503

343 P.2d 503

80 Wyo. 374

Margaret BOSCHETTO, Appellant (Defendant below), v. Ben BOSCHETTO, Appellee (Plaintiff below).

No. 2873.

Supreme Court of Wyoming.

Aug. 18, 1959.

Magagna, Galicich & Hamm, Rock Springs, for appellant.

Albert E. Nelson and William H. Jackson, Jr., Rock Springs, and A. G. McClintock, Cheyenne, for appellee.

Before BLUME, C. J., and PARKER and HARNSBERGER, JJ.

Mr. Chief Justice BLUME delivered the opinion of the court.

This action, which is one for divorce, was instituted by Ben Boschetto, appellee herein, on March 30, 1956, asserting that Margaret Boschetto, his wife and appellant herein, had offered such indignities to the appellee as to render his condition as husband of defendant intolerable. Margaret Boschetto answered, generally denying the allegations of the petition, and filed a cross-petition alleging that the plaintiff had been guilty of extreme cruelty to the defendant and that the plaintiff had offered such indignities to defendant as to render her life with plaintiff intolerable and further alleging that plaintiff and defendant had, by their joint efforts and as joint adventurers and partners, acquired property in excess of $200,000 in value. She asked that she be divorced from the plaintiff. The case was tried to the court without a jury and at the close of the trial the court rendered judgment granting a divorce to the plaintiff, Ben Boschetto, and dividing the property of the parties as hereinafter mentioned. From that judgment Margaret Boschetto has appealed. She will be referred to hereafter as the appellant and Ben Boschetto will be referred to as the appellee.

It appears herein that from 1941 to August, 1947, the parties herein lived together as husband and wife and held themselves out as such but were not in fact married. They were married, however, in August, 1947, and lived together as husband and wife except as hereinafter indicated until February, 1956, when the appellee left the appellant, and the parties have not lived together since that time. The appellee had been married previously and by that marriage had three children, namely, a son named Ben, born in 1927, Alfred, a son born in 1930, and one daughter named Verlee born in 1932. The appellant also had been previously married and had one daughter who died in 1949.

1. As to the divorce. The record herein is voluminous. Aside from exhibits, we have some 350 pages of typewritten testimony before us. As we stated in Steere v. Steere, 72 Wyo. 501, 267 P.2d 750, we see no good reason to relate the testimony in great detail. It will subserve no good purpose. That is particularly true in view of the fact that both parties herein seek a divorce. Appellee relied upon indignities heaped upon him. It appears that soon after the parties were married the appellant commenced to take intoxicating liquors to excess and did so frequently. One witness testified that she became intoxicated practically every holiday, every weekend and sometimes during the middle of the week. During such times appellant would curse the appellee, calling him such names as 'bastard', 'dago', 'wop' and 's. o. b.' At one time she told the appellee to go to hell, that she was tired of him and for him not to come back. Three special incidents of that nature were testified to in detail, commencing with 1954, after which the appellee left the appellant and commenced an action for divorce. However, they became reconciled. Another such incident occurred in 1955 at their summer home when appellee, as he stated, became a wreck and drove home and again commenced an action for divorce. They were then separated for several months but became reconciled on Christmas Eve of 1955. But this, unfortunately, lasted only six weeks and in February, 1956, her conduct, as shown by the testimony, was worse than ever and appellee finally left her and the present action was commenced. At one time, as stated by the appellee, appellant called appellee's daughter, Verlee, a 'black bitch'. Appellant herself testified that when she had some intoxicating liquor her courage rose and then she would 'tell him off'. We think that there was sufficient testimony to warrant the trial court in holding that the complaint of appellee was well taken. It is said in 27A C.J.S. Divorce § 44(2), p. 150, that indignities consist of various acts varied in their nature. 'Generally speaking, such acts may consist of rudeness, vulgarity, unmerited reproach, haughtiness, contumely, studied neglect, intentional incivility, manifest disdain, abusive language, malignant ridicule, and every other plain manifestation of settled hate and estrangement.'

Counsel for appellant contend that appellee was guilty of the same thing of which he accuses the appellant and that, therefore, under the rule of recrimination, he cannot obtain a divorce. Furthermore, they say that he was guilty of cruelty to the appellant and, hence, the appellant is entitled to a divorce. However, we do not think that the rule of recrimination is applicable in this case, in view of the contradictory evidence appearing in the record. Appellant testified that the appellee called her vile names, but the appellee testified that he never abused her and that he did everything he could to make the marriage a success. The trial court resolved the point in appellee's favor and this court cannot interfere. There was testimony that appellee hit the appellant on Christmas Eve, 1952, and once, perhaps twice, in the year 1955 at their summer home. Appellee denied that he hit the appellant and stated that he merely pushed her, perhaps onto the bed. He indicated how he pushed her. The trial judge saw how it was done. We have no means of knowing that, so this question too must be left to the judgment of the trial court and we cannot interfere. This is true also in regard to the charge that the appellee was frequently guilty of becoming intoxicated. The appellee denied that. Ted Peterson, a nephew of the appellant, testified that he went to a so-called 'cat house'--whatever that may be--with the appellee, and that they had a beer and left. It does not appear how often that was true; perhaps that was the only near place where appellee and Peterson could get a beer, and we cannot regard the matter seriously. Counsel for appellant intimate that appellee was guilty of infidelity without any evidence to support the charge. Counsel also complain because he did not take her to Italy with him in 1953 and to other places. He probably would have done so if they had been more congenial. The failure to do so did not justify her misconduct nor does the fact that she suffered with neurosis. If she was unable to control taking intoxicating liquor she could have gone to bed and 'slept it off'. She could have avoided, we think, calling the appellee the abusive names which we have heretofore mentioned. Counsel also contend that appellee deliberately planned to get rid of the appellant by taking liquor home--which he did to some extent--and by other actions. We do not get that impression from the record before us. Appellee married appellant in 1947 after living with her in a meretricious relationship. He took the trouble to take her to Albert Nelson to get him to persuade her to refrain from using intoxicating liquor to excess. He caused her to be taken to a psychiatrist in Salt Lake City in the hope that treatment by him would help her. He twice brought an action for divorce and twice a reconciliation took place. Such actions are inconsistent with the claim that appellee tried to get rid of the appellant. Counsel for appellant make an impassioned plea in their brief on appellant's behalf. That could very well have been addressed to the trial court but is somewhat out of place when addressed to an appellate court. The trial court saw the witnesses on the witness stand. Appellee testified for nearly a whole day. The court had ample opportunity to judge as to whether or not he was telling the truth. We are not in the same position as the trial court. It is probably true that appellee's conduct was not altogether above reproach. We seldom find that to be true. As said in 1 Nelson, Divorce and Annulment, 2d Ed., § 10.03, p. 364, 'Quite a number of courts have pointed to the fact that the wrecking of a marriage is almost always due to fault on both sides.' However, it is not necessary for a complainant to be entirely blameless in order to be entitled to a divorce. 27A C.J.S. Divorce § 56(3) b, p. 180, n. 73; 27A C.J.S. Divorce § 67a, pp. 228-229, n. 59.10. We do not think that we would be justified in interfering with the finding and judgment of the trial court awarding the appellee a divorce herein. We find no reversible error so far as admission of testimony is concerned.

2. Division of the property. Section 3-5916, W.C.S.1945, provides as follows:

'In granting a divorce, the court shall also make such disposition of the property of the parties, as shall appear just and equitable, having regard to the respective merits of the parties and to the condition in which they will be left by such divorce, and to the party through whom the property was acquired, and to the burdens imposed upon it, for the benefit of the wife and children, and the court may also decree to the wife reasonable alimony out of the estate of the husband having regard for his ability, and to effectuate the purposes aforesaid, may order so much of his real estate or the rents and profits thereof, as is necessary to be assigned and set out to the wife for life, or may decree a specific sum to be paid by him to her, and use all necessary legal and equitable processes to carry its decrees into effect.'

In Lovejoy v. Lovejoy, 36 Wyo. 379, 256 P. 76, 79, Id., 38 Wyo. 358, 267 P. 91, this court stated:

'It is conceded that in making a division of property under the statute the trial court exercises a discretion. There are no hard and fast rules to control its action. The statute does...