Brown v. Brown

• Decision Date: 14 April 1915
• Citation: 148 P. 45,27 Idaho 205
• Parties: MAYNARD BROWN, Respondent, v. CELIA A. BROWN, Appellant
• Court: Idaho Supreme Court

148 P. 45

27 Idaho 205

MAYNARD BROWN, Respondent, v. CELIA A. BROWN, Appellant

Supreme Court of Idaho

April 14, 1915

ADULTERY-FINDINGS-SUFFICIENCY OF EVIDENCE.

1. Where a decree of divorce is granted on the ground of adultery, the evidence ought to be clear and conclusive of that offense.

2. The evidence held not sufficient to support the findings of the trial court.

APPEAL from the District Court of the Second Judicial District for Clearwater County. Hon. Edgar C. Steele, Judge.

Action to procure a divorce. Judgment for plaintiff. Reversed.

Judgment set aside and a new trial granted. Costs awarded to appellant.

Edward Hofstede, for Appellant.

The proof of adultery as a ground for divorce must be clear and positive. (Berckmans v. Berckmans, 17 N.J. Eq. 453; Gibson v. Gibson, 18 App. Cas. (D. C.) 72; Moller v Moller, 115 N.Y. 466, 22 N.E. 169.)

Testimony that adultery was committed without evidence as to the facts upon which the conclusion is based is insufficient. (Herrick v. Herrick, 31 Mich. 298.)

If after careful consideration, the evidence of guilt is inconclusive, a divorce will be denied. (Haggard v Haggard, 62 Iowa 82, 17 N.W. 178 [boastful admission by defendant and testimony by hostile witness]; Scheffling v. Scheffling, 44 N.J. Eq. 438, 15 A. 577 [uncorroborated and improbable evidence of a single witness]).

An adulterous disposition is not necessarily shown by the existence of a state of undue familiarity between the parties accused (Pollock v. Pollock, 71 N.Y. 137), and in the absence of evidence of an adulterous inclination, proof of opportunity alone does not establish adultery. (Osborn v. Osborn, 44 N.J. Eq. 257, 9 A. 698, 10 A. 107, 14 A. 217.)

John R. Becker, for Respondent.

The appellant's case under her cross-complaint is not sufficient as a defense and bar to respondent's right to a decree unless she has made out a case which would entitle her to a decree against her husband if the charge of adultery on her part had not been alleged or proved. (Sec. 2656, Rev. Codes; Stoneburner v. Stoneburner, 11 Idaho 603, 83 P. 938; Conant v. Conant, 10 Cal. 249, 70 Am. Dec. 717.)

SULLIVAN, C. J. Budge, J., concurs. Morgan, J., did not sit at the hearing and took no part in the decision of this case.

OPINION

SULLIVAN, C. J.

This action was brought to procure a divorce on the ground of adultery, for the care and custody of three minor children, and for the distribution of certain property belonging to the plaintiff and defendant.

The defendant answered, denying some of the material allegations of the complaint, and by way of cross-complaint demanded a divorce from the plaintiff on the ground of cruel and inhuman treatment. The cross-complaint was answered by the plaintiff and the cruel and inhuman treatment charged in the cross-complaint denied.

Upon the issues thus made the cause was tried and finding of facts and decree and judgment entered in favor of the plaintiff, granting him a divorce on the ground of adultery and awarding the youngest child to the mother and the other two to the mother of the plaintiff, and making a distribution of the property belonging to the parties. The appeal is from the judgment.

Several errors are assigned, to the effect that the evidence is insufficient to sustain the findings; that the finding made on the issues raised on the cross-complaint is not sufficient; that the court erred in awarding certain property to the plaintiff and in awarding the custody of the two older minor children to the mother of the plaintiff, and in not requiring the plaintiff to pay the attorney's fees of the defendant, and that the court erred in admitting and excluding certain evidence.

It is first contended that the evidence is not sufficient to support the findings of the court whereby the court found the defendant guilty of adultery. The court found that one act of adultery was committed with one Snodgrass, now deceased, on or about the first day of November, 1912. The court also found that on divers other days and times between the 1st of November, 1912, and the 25th of February, 1914, the defendant committed adultery with said Snodgrass at and in the vicinity of the residence of plaintiff near the village of Orofino.

The record shows that said Snodgrass had boarded in the family of the plaintiff and defendant for three months or more and was a very frequent visitor at their home; that the plaintiff's mother had lived in the family and was a frequent visitor there; also one of the principal witnesses for the defendant, a Mrs. Mary Norris, had boarded for about three months in the Brown family, she being the only witness who testified to having seen any act of sexual intercourse between the defendant and said Snodgrass. On her cross-examination she admitted that she did not see them having sexual intercourse, but the defendant was sitting straddle of his lap; that she did not see them in the act; that although she had boarded there for three months or more, she never saw any other act that led her to believe that they were guilty of the act charged, but she thought they were a little too familiar in the way they talked, but did not remember any of the conversation or conversations that suggested familiarity; that she never "came right out and told anybody" of said compromising position she claimed to have seen them in, although she remained at the residence of Brown for some weeks after she claimed to have seen said act of intimacy.

The record shows that this witness had a grudge against the appellant, and that she had said she intended "to get even" with her. The appellant denied ever having sexual intercourse with Snodgrass and also testified that she had a conversation with the witness, Mary Norris, and testified in regard to such conversation as follows: "Well, I asked her, I says, 'Mamie'--she had talked before and said she would get even--'now,' I says, 'I would like to know what you are going up there and tell and hurt me, if you tell the truth, for,' I says, 'you know you can't tell anything to hurt me, and tell the truth.' She says, 'I don't care a damn; I can get even with you. If I don't, I will get paid for it; there is money in it anyway.'"

This witness, Mary Norris, it appears, testified on the criminal trial in which the respondent was prosecuted for the murder of Snodgrass, to some things damaging to the character of the appellant. The plaintiff himself testified that he knew of no acts of sexual intercourse between the appellant and Snodgrass. The...