Brammer v. Brammer, 10352

• Decision Date: 26 June 1970
• Docket Number: No. 10352,10352
• Parties: George F. BRAMMER, Plaintiff-Respondent, v. Leah Jean BRAMMER, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 58

471 P.2d 58

93 Idaho 671

George F. BRAMMER, Plaintiff-Respondent, v. Leah Jean BRAMMER, Defendant-Appellant.

No. 10352.

Supreme Court of Idaho.

June 26, 1970.

Paul C. Keeton, Lewiston, for appellant.

Wynne M. Blake, Lewiston, for respondent.

DONALDSON, Justice.

On April 10, 1947, George F. Brammer (plaintiff-respondent) and Leah Jean Brammer (defendant-appellant) were married. Five children were born of the marriage. On September 27, 1967, George F. Brammer filed suit for divorce against his wife alleging that Mrs. Brammer had been guilty of extreme acts of cruelty. Mr. Brammer's grounds for divorce were that Mrs. Brammer was a domineering person, insisted upon having her own way at all times, that she criticized, berated, and nagged the plaintiff, all of which conduct was unwarranted. George F. Brammer requested the following relief from the district court:

(1) an absolute decree of divorce from his wife on the grounds of extreme cruelty;

(2) a division of the community property between the parties in a fair, just, and equal manner;

(3) reasonable visitation rights to the minor children;

(4) such other and further relief as may seem meet and proper.

Mrs. Brammer, defendant-appellant, on April 12, 1968, filed an answer to the complaint admitting the allegations concerning the marriage and birth of the children but denying the rest of the allegations of the complaint including the grounds upon which Mr. Brammer requested that the court grant him a divorce and set out as an affirmative defense that Mr. Brammer had become infatuated with another woman. The trial of this divorce action commenced on July 15, 1968. At this time the court conducted a hearing concerning the charges of each party against the other. A later hearing was held by the court for the purpose of determining the rights of the respective parties to the property. After the July 15, 1968, hearing the parties entered into a stipulation filed August 29, 1968, by which the defendant filed a cross-complaint with a prayer for a divorce upon grounds of adultery. In her cross-complaint, Mrs. Brammer requested the following relief:

(1) an absolute decree of divorce on the grounds of adultery;

(2) alimony;

(3) care, custody and control of the minor children;

(4) a just assignment of the community property.

The record reveals ample evidence indicating that Mrs. Brammer (defendant-appellant) was a domineering individual, insistent upon having her own way. She was extremely critical of her husband, ofttimes berating him and making disparaging remarks to him. Furthermore she was not receptive to his wants and needs. She became annoyed at his interest and participation in town baseball and basketball teams. A perusal of the record reveals that although Mrs. Brammer repeatedly persuaded and convinced her husband to act in accordance with her own wishes, ¹ she would not acquiesce in permitting him to participate in the activities which he preferred.

The appellant charged that the respondent was on intimate terms with another woman, however, the trial court found that although:

'The defendant's (Mrs. Brammer's) conduct and attitude triggered the plaintiff's (Mr. Brammer's) association with the other woman, yet such association * * * has caused the defendant (Mrs. Brammer) embarrassment and humiliation and some mental suffering. * * * The evidence is insufficient to sustain a finding that plaintiff (Mr. Brammer) has committed adultery * * *. The charge of adultery is a serious one and cannot and should not be based or bottomed on the testimony of the witness who stated that she asked plaintiff if he had sexual relations with this other woman and that he answered in the affirmative, particularly when plaintiff denied making such admission, and each could have misunderstood the other.' ²

Subsequent to trial, the following decree of divorce was made:

(1) The respondent was granted an absolute divorce from the appellant and the appellant was granted an absolute divorce from the respondent, both upon the grounds of extreme cruelty;

(2) care and custody of the minor children was awarded to the appellant;

(3) respondent was required to pay child support of $75.00 per month for each minor child;

(4) respondent was required to pay certain of his wife's attorney's fees and accountant's fees.

An equal division of the couple's property was made. The farm property and machinery, not being divisible in kind since such would cripple respondent's earning power and ability to pay off the indebtedness against the same, was awarded to Mr. Brammer. The residence in Lewiston and one Oldsmobile automobile having a total value of $41,243 were awarded to Mrs. Brammer. In order to effect an equal disvision of the property, Mr. Brammer was ordered to pay to Mrs. Brammer the difference between the property set over to her and one-half of the community net worth or the sum of $47,652.04, in equal installments of $350 per month. ³

Mrs. Brammer has appealed to the Supreme Court from the judgment and decree of divorce.

Mrs. Brammer firstly contends that the trial court erred in finding that Mrs. Brammer's conduct and attitude triggered Mr. Brammer's association with the other woman since the finding is not based upon any substantial and competent evidence. The evidence clearly demonstrates that Mrs. Brammer made life unpleasant for her husband. The record is replete with testimony indicating that the wife's persistent criticism and nagging, in addition to her domineering nature, were factors which made life unbearable for Mr. Brammer. The trial court found that under these circumstances 'he lost the love he had for his wife and found the company of another woman.'

It has long been the rule of this Court that where there is sufficient substantial and competent evidence to support the findings of the trial court and such findings are not clearly against the weight of the evidence, the findings are binding on the Supreme Court and will not be disturbed on appeal. Howay v. Howay, 74 Idaho 492, 264 P.2d 691 (1953). The trial judge is the arbiter of conflicting evidence and his determination of the weight, credibility, inferences and implications thereof is not to be supplanted by this Court's impressions or conclusions from the written record. Sellars v. Sellars, 73 Idaho 163, 248 P.2d 1063 (1952); Piatt v. Piatt,32 Idaho 407, 184 P. 470 (1919). This is so because the trial court has a better opportunity to judge this matter because of seeing and noting the demeanor of the witnesses. Keezer on the Law of Marriage & Divorce, § 881, p. 877 (3d ed. 1946). It is for these reasons that we do not find that the trial court erred with respect to its finding that appellant's (Mrs. Brammer's) conduct triggered Mr. Brammer's association with the other woman.

Appellant next contends that the trial court erred by finding that there was no evidence to substantiate her claim of adultery and in granting her a divorce on the 'grounds of extreme cruelty which she never alleged in her cross-complaint.' A claim of adultery as a ground for divorce must be set forth with specificity.

'Where adultery is the charge, the essential allegations of the complaint as to the time, place, and person with whom the offense was committed should ordinarily be proved as laid.' (Emphasis supplied.) 27A C.J.S. Divorce § 122, p. 409.

'If plaintiff (cross-plaintiff, Mrs. Brammer) asserts adultery as a ground for divorce, he or she must prove the adultery.' 27A C.J.S. Divorce § 123(4), p. 415.

In the case at bar, the appellant, Mrs. Brammer, has neither alleged nor proven a valid claim in adultery. There is lacking in her cross-complaint, both the time and place of the allegedly adulterous act. Further it has long been the rule in Idaho that:

'When the cause of adultery is relied upon for a divorce, such charge should be stated with sufficient definiteness and certainty as to the time and place as will enable the defendant to know what he will be called upon to meet at the trial. 17 Am.Jur. § 336, p. 449; Rice v. Rice, 46 Idaho 418, 267 P. 1076. * * * This court has announced that it is a matter of public policy that divorces, especially on the ground of adultery, should be granted only upon very clear and conclusive evidence. Brown v. Brown, 27 Idaho 205, 148 P. 45.' Leonard v. Leonard, 88 Idaho 485 at 490, 491, 401 P.2d 541 at 544 (1965).

Where adultery is relied upon as the ground for divorce, the specific act must be established by the evidence. Rice v. Rice, 46 Idaho 418, 267 P. 1076 (1928).

Appellant asserts that the trial court erred by granting her a divorce on the ground of extreme cruelty, a ground which she did not allege in her cross-complaint. Rule 15(b) I.R.C.P. provides in part that:

'When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. * * *'

A review of the evidence adduced at trial discloses that there was ample evidence that Mr. Brammer (plaintiff-respondent) was guilty of extreme mental cruelty. In view of the directive declared by Rule 15(b) I.R.C.P. (as set forth above), the trial court did not err by granting Mrs. Brammer a divorce on the ground of extreme cruelty of her husband since the issue of Mr. Brammer's cruelty was tried by the implied consent of the parties and thus became a live issue in the case. See 3 Moore Federal Practice, e 15.13(2) at 983 (2d ed. 1968). ⁴ See also, Lientz v. Wheeler, 113 F.2d 767 (8th Cir. 1940); George Cohen Sons & Co. v. Koch, 376 F.2d 629 (1st Cir. 1967).

Appellant lastly...