Chrisman v. Chrisman

• Decision Date: 12 June 1973
• Docket Number: No. 2--1172A106,2--1172A106
• Parties: Daniel R. CHRISMAN, Appellant (Defendant below), v. Mary CHRISMAN, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 904

296 N.E.2d 904

156 Ind.App. 388

Daniel R. CHRISMAN, Appellant (Defendant below), v. Mary CHRISMAN, Appellee (Plaintiff below).

No. 2--1172A106.

Court of Appeals of Indiana, Second District.

June 12, 1973.

John F. White, Indianapolis, for appellant

Marc A. Bleecker, Indianapolis, for appellee.

BUCHANAN, Presiding Judge.

CASE SUMMARY

This is an appeal by defendant-appellant Daniel Chrisman (Daniel) challenging a trial court decision awarding his wife, plaintiff-appellee Mary Chrisman (Mary), an absolute divorce, on the ground that condonation barred her right to a divorce and further that child support was excessive.

We affirm.

FACTS

The facts and events most favorable to Mary are:

The first marriage between Mary and Daniel produced three children and ended in divorce in October of 1966. They remarried on June 30, 1967.

Mary and Daniel frequently argued and she testified that Daniel often hit her, shoved her against the kitchen wall, and on one occasion attempted to eject her bodily from the house. This conduct destroyed her peace of mind.

As a result of these arguments and Daniel's actions, they separated on October 20, 1971, one on October 29, 1971 Mary filed a Complaint For Divorce on grounds of cruel and inhuman treatment. The evidence indicates that all of Daniel's acts of marital misconduct occurred prior to the separation and the filing for divorce and that no acts of cruelty occurred thereafter.

While the divorce action was pending they frequently discussed reconciliation in an attempt to resolve their differences. Mary testified that she and Daniel did not live together as husband and wife after the separation but that Daniel often stayed with her on weekends. During these weekend 'visits,' Mary admitted that she and Daniel had sexual relations, attended church together, and took the children to school on Monday mornings.

On June 22, 1972, trial was held on Mary's Complaint For Divorce. She testified that despite Daniel's weekend 'visits' she never intended to dismiss her Complaint or to forgive Daniel for his previous acts of cruel and inhuman treatment. Further, she felt uneasy about Daniel's 'visits' and wished that he would see the children away from the home.

Evidence indicated that Daniel was earning $11,600.00 per year and Mary approximately $10,000.00 per year. Her testimony was that child support amounted to $125.00 per week, mortgage payments $111.00 per month, and that she expected to spend $375.00 for high school tuition for the oldest son. Their savings account in the amount of $1,600.00 was exhausted by Mary for support of the children while the divorce was pending.

In response to a question by the trial court as to whether her desire for a divorce would change if the court took the matter under advisement for six months, Mary replied that her feelings would not change during a six-month or longer period.

The trial court granted Mary an absolute divorce and custody of the children and child support payments in the amount of $75.00 per week.

Daniel now appeals.

ISSUES

ISSUE ONE. Did Mary condone Daniel's previous cruel and inhuman conduct by having sexual relations with him during the pendency of the divorce action thereby barring her right to an absolute divorce?

ISSUE TWO. Is the amount of child support awarded by the trial court excessive?

As to ISSUE ONE, Daniel contends that by having sexual relations with him Mary is presumed to have condoned any and all acts of cruel and inhuman treatment on his part, a presumption which can only be overcome by evidence that she did so involuntarily. There was no such evidence.

Mary replies that any evidence of condonation was rebutted by her testimony that she did not intend to effectuate a permanent reconciliation nor forgive Daniel for his prior acts of cruel and inhuman treatment.

As to ISSUE TWO, Daniel contends that the child support order awarded by the trial court is excessive and not supported by sufficient evidence.

Mary replies that the child support order was made pursuant to the discretion of the trial court and was based upon sufficient evidence.

DECISION

ISSUE ONE.

CONCLUSION--It is our opinion that by having sexual relations with Daniel during the pendency of the divorce Mary did not condone Daniel's prior acts of cruel and inhuman treatment.

Condonation in the law of divorce is the intentional forgiveness of an antecedent matrimonial offense on condition that it shall not be repeated and that the offender shall thereafter treat the forgiving party with conjugal kindness. David v. David, (1946) 116 Ind.App. 603, 66 N.E.2d 284; Hash v. Hash, (1945) 115 Ind.App. 437, 59 N.E.2d 735; Heckman v. Heckman, (1956) 235 Ind. 472, 134 N.E.2d 695.

Generally, condonation of the wrongful conduct which might be a cause for divorce will bar a suit by the condoning party for divorce. Graves v. Graves, (1953) 123 Ind.App. 618, 112 N.E.2d 869; Mitchell v. Mitchell, (1956) 126 Ind.App. 377, 133 N.E.2d 79. But, in order to be effective, condonation must be the voluntary act of the aggrieved spouse. Hash v. Hash, supra.

It is generally stated that a presumption of condonation arises when the aggrieved spouse, with knowledge of the prior wrongful conduct, lives in the same house on terms of matrimonial cohabitation with the spouse guilty of the wrongful conduct. Long ago our Indiana Supreme Court discussed condonation in these terms:

'Condonation may be inferred, from the facts of living and cohabiting, by the injured party, with the offender, after knowledge of the commission of the offence. Cohabitation will be inferred, nothing appearing to the contrary, from the fact of the living together of husband and wife. We use the terms 'cohabit' and 'cohabitation' as implying sexual intercourse.' Burns v. Burns, (1877) 60 Ind. 259, 260. (Emphasis supplied.)

See also: Graves v. Graves, supra.

An important element of condonation is intent to condone or forgive. Even where the parties have engaged in acts of sexual relations, to constitute condonation of a spouse's prior cruel and inhuman treatment such acts must have been accompanied by an intention of the aggrieved spouse to condone. Mitchell v. Mitchell, supra; Fordice v. Fordice, (1956) 126 Ind.App. 562, 132 N.E.2d 618. So, cohabitation and sexual relations do not constitute condonation of prior cruel and inhuman treatment unless done with an intent to forgive. Fordice v. Fordice, supra; Mitchell v. Mitchell, supra; Heckman v. Heckman, supra; Wolverton v. Wolverton, (1904) 163 Ind. 26, 71 N.E. 123.

Recognizing that 'to err is human but to forgive is divine,' an aggrieved spouse may by his or her conduct express forgiveness. The existence of such forgiveness is a question of fact to be determined by the trier of fact. Fordice v. Fordice, supra.

There was competent evidence rebutting the presumption of condonation arising out of the weekend visits between Mary and Daniel. She testified that she never intended to forgive Daniel and that she had no intention of dismissing her Complaint. Also she indicated to the court that her desire for a divorce would not change even if taken under advisement for a period of six months or longer.

The trial court, as trier of the fact, weighed the evidence and properly determined that Mary did not condone Daniel's past acts of cruel and inhuman treatment. Van Antwerp v. Van Antwerp, (1954) 125 Ind.App. 65, 122 N.E.2d 137; Heckman v. Heckman, supra.

Daniel cites Graves as factually similar and therefore direct authority for his position that condonation results from sexual relations. In Graves, the husband committed acts of cruel and inhuman treatment prior to a separation from his wife. After separation and before trial, the parties cohabited and engaged in sexual relations. There was no evidence that the husband committed any acts of cruel or...