Cady v. Cady

• Decision Date: 21 March 1962
• Docket Number: No. 9946-,9946-
• Citation: 79 S.D. 500,100 A.L.R.2d 608,114 N.W.2d 102
• Parties: , 100 A.L.R.2d 608 Eugene O. CADY, Plaintiff and Appellant, v. Darlene M. CADY, Defendant and Respondent. a.
• Court: South Dakota Supreme Court

Page 102

114 N.W.2d 102

79 S.D. 500, 100 A.L.R.2d 608

Eugene O. CADY, Plaintiff and Appellant, v. Darlene M. CADY, Defendant and Respondent.

No. 9946-a.

Supreme Court of South Dakota.

March 21, 1962.

Paul E. Mundt, Sioux Falls, for plaintiff and appellant.

T. R. Johnson, Sioux Falls, for defendant and respondent.

RENTTO, Presiding Judge.

The plaintiff husband instituted this action for divorce on April 17, 1960 alleging extreme cruelty. In her answer the defendant wife denied his grounds for divorce and counterclaimed for separate maintenance because of his extreme cruelty. The judgment entered on April 3, 1961, dismissed his cause of action on its merits and with prejudice, and granted her a decree of separate maintenance. She was given custody of their children and the possession of their home with its furnishings. He was ordered to pay her attorneys fees and to support her and the children, whom he was given the right to visit. The husband appeals.

These parties were married on February 3, 1945 and have four children. The three oldest are boys, and the youngest a girl. When this action was commenced they were 13, 11, 9 and 2 years of age respectively. Plaintiff is 39 years of age and employed as Motor Vehicle Officer with the Air National Guard. The record does not indicate defendant's age but it does reveal that she is a high school graduate and had worked as a telephone switchboard operator and as a clerk in a department store before they were married. He obtained his high school disploma by examination while in military service. They seemed to have gotten along reasonably well until January 1960 when plaintiff voluntarily left their home.

His first complaint on this appeal is that the evidence is not sufficient to support an award of separate maintenance. This we think is without merit. So far as here pertinent SDC 14.0727 provides: 'An action for separate maintenance may be maintained without request for divorce, upon any grounds which would be grounds for divorce'. In SDC 14.0703 extreme cruelty is listed as one of the causes for granting a divorce and is defined in SDC 14.0708 as 'the infliction of grievous bodily injury or grievous mental suffering upon the other, by one party to the marriage.' It is not necessary to nor would any good purpose be served by detailing the evidence submitted in support of her cause of action. The court's finding that plaintiff's treatment of his wife constituted extreme cruelty is well supported by the record viewed most favorably to her.

In this connection his principal contention is that the evidence is insufficient because it lacks corroboration. As to whether corroboration of the evidence is necessary in an action for separate maintenance the cases are in conflict. Nelson-Divorce & Annulment, 2d Ed., Sec. 32.38 and 42 C.J.S. Husband & Wife Sec. 621c. This court apparently has not previously passed on the matter.

Our statute SDC 1960 Supp. 14.0723 requires corroboration in a divorce action. However, it is to be noted that in such actions the corroboration applies only to the granting of a divorce. Secs. 136 and 137 of the California Civil Code relating to separate maintenance contain about the same provisions that we have in our separate maintenance statute SDC 14.0727. Further, Section 130 of their Civil Code on corroboration in divorce cases is of the same import as our SDC 1960 Supp. 14.0723. In that state it has long been the rule that corroboration is not necessary in an action for maintenance without divorce. Mattson v. Mattson, 181 Cal. 44, 183 P. 443; Barsic v. Barsic, 102 Cal.App.2d 660, 227 P.2d 881. We hold that it is not required under our law.

The husband also urges that the evidence which he submitted was such that the trial court should have awarded him a divorce. We have studied the record of it with care. Many of the things that he claims were disputed by other evidence and some of the more serious incidents explained in such a way that it was for the trial judge to decide what the situation really was. The mere fact that the husband's versions of some of the incidents were corroborated does not put it beyond the power of the trial court to evaluate the evidence and decide that the facts are otherwise than as the husband contends. If the judge accepted her version of their troubles, which he had a right to do, the dismissal of the husband's complaint was proper.

At the conclusion of the trial the judge made a few remarks revealing his reactions to some of the situations that the evidence had developed concerning this unfortunate home. He also expressed himself as to matters that concerned and guided him in arriving at a decision in litigation of this kind. These were made a...