Brydon v. Brydon
| Decision Date | 04 October 1961 |
| Docket Number | No. 3010,3010 |
| Citation | 365 P.2d 55 |
| Parties | Ruth BRYDON, Appellant (Plaintiff below), v. John BRYDON, Appellee (Defendant below). |
| Court | Wyoming Supreme Court |
Ferrall, Bloomfield, Osborn & Lynch and C. N. Bloomfield, Jr., Cheyenne, for appellant.
Hirst & Applegate, and Byron Hirst, Cheyenne, for appellee.
Before BLUME, C. J., and PARKER, HARNSBERGER and McINTYRE, JJ.
The only question presented on appeal in this case is whether the district court erred in denying a divorce to the plaintiff, Ruth Brydon, and in dismissing the divorce action at the close of her evidence. She contends that the motion to dismiss should not have been granted if there is in the trial record any substantial evidence that the defendant was chargeable with any one of the three grounds for divorce asserted by her.
Whatever the better practice may have been prior to the adoption of the Wyoming Rules of Civil Procedure with respect to a motion to dismiss at the close of plaintiff's evidence, it is apparent that the matter is now settled by Rule 41(b)(1) of said rules. This rule provides:
* * *'
The foregoing has been taken from and is identical to a corresponding portion of Rule 41(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. The sentence pertaining to an action tried by the court without a jury was added to the Federal rule by an amendment in 1946. In 5 Moore, Federal Practice, pp. 1045-1046 (2d ed.), it is pointed out that the amendment clearly adopts the better practice. In that regard the writer states:
'* * * Since the Rules were designed to expedite the trial of cases it is certainly within their purpose that the court should have the power to dispose of the case at the first opportunity, and it is entirely appropriate that the court have the power to weigh the evidence, consider the law, and find for the defendant at the close of plaintiff's case. * * *'
From a practical point of view, it is apparent that a trial judge in an action tried by the court without a jury should have the right to dispose of the case at the first opportunity. It is not to be assumed that the defendant will improve the plaintiff's case. In fact, the defendant could decline to offer any additional evidence at all, in which event the trial judge would still decide the matter on the basis of plaintiff's evidence.
In the case at bar, Mrs. Brydon seeks a divorce on the grounds of intolerable indignities, extreme cruelty and noncohabitation by the parties for more than two consecutive years. Concerning her claim of indignities and cruelty in particular, we have previously said that some latitude for the exercise of discretion is permitted to the trial court in determining the sufficiency of grounds for divorce, and its findings will stand in the absence of abuse of discretion. See Gill v. Gill, Wyo., 363 P.2d 86, 88, and cases cited. We have no reason to believe that there was an abuse of discretion in this case.
Conceivably, the wife's testimony against her husband, if it could be separated from her own misconduct, might be considered sufficient to make a possible case for divorce on the grounds of indignities or cruelty. However, her equal guilt as disclosed by the evidence adduced was ample to bar her from a divorce in this state.
Section 20-55, W.S.1957, provides that no divorce shall be decreed in any case 'where the party complaining shall be guilty of the same crime or misconduct charged against the defendant.'
It is undisputed in the case and admitted by the plaintiff that she left the family home in Erie, Pennsylvania, with another man on September 4, 1957 and departed for Nevada intending to obtain a...
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Kure v. Chevrolet Motor Division
...and keeping in mind that such a dismissal on the merits provides a means to dispose of a case at the first opportunity, Brydon v. Brydon, Wyo.1951, 365 P.2d 55, we must also consider our review of the trial court's judgment. We are provided a guide by the Rules. Rule 41(b) requires that the......
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Piner v. Piner, 4190
...the matter. Affirmed. 1 Boschetto v. Boschetto, 80 Wyo. 374, 343 P.2d 503, 506; Clauss v. Clauss, Wyo., 459 P.2d 369, 374; Brydon v. Brydon, Wyo., 365 P.2d 55, 56; Widmer v. Widmer, Ind., 292 N.E.2d 849, 851-852; Snyder v. Snyder, 42 Mich.App. 573, 202 N.W.2d 504, ...
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Clauss v. Clauss
...in determining the sufficiency of grounds for divorce, and its findings will stand in the absence of abuse of discretion. Brydon v. Brydon, Wyo., 365 P.2d 55, 56. We find no abuse of discretion in the case now before In saying plaintiff should have been denied a divorce because of his equal......
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Eisenbarth v. Eisenbarth, 4556
...neither is entitled to a divorce, Logan v. Logan, Wyo., 396 P.2d 198, 199; and this was earlier articulated in the case of Brydon v. Brydon, Wyo., 365 P.2d 55, 56. In Piner v. Piner, Wyo., 511 P.2d 94, 96, the court again recognized the binding force of this statute, although holding if fau......