Clara M. Carr v. Levi D. Carr

• Decision Date: 04 November 1926
• Citation: 135 A. 5,100 Vt. 65
• Parties: CLARA M. CARR v. LEVI D. CARR
• Court: Vermont Supreme Court

135 A. 5

100 Vt. 65

CLARA M. CARR v. LEVI D. CARR

Supreme Court of Vermont

November 4, 1926

October Term, 1926.

PETITION FOR DIVORCE on grounds of non-support and intolerable severity. Heard by court at the September Term 1925, Washington County, Thompson, J., presiding. Petition dismissed. The petitioner excepted. The opinion states the case.

Judgment affirmed.

John W. Gordon for the petitioner.

Stanley C. Wilson for the petitionee.

Present: WATSON, POWERS, SLACK, and FISH, JJ., and MOULTON, Supr. J.

OPINION

WATSON CHIEF JUSTICE.

This is a petition for a divorce on the grounds of intolerable severity and failure to support. Marriage and residence were properly proved. No evidence was introduced on the part of the petitionee. At the close of petitioner's evidence, the petitionee moved that the petition be dismissed for that no case was made out in any way which the petitionee ought to be called upon to answer. Thereon counsel for petitioner said there was a case of intolerable severity clearly made out, affecting her health; that petitionee's treatment of her, and stripping her of property, everything there was, taking things and going away and leaving her without support, was intolerable severity. The judges then retired for consideration. Returning, the court said: "On the motion of the petitionee that the petition be dismissed, in that the petitioner has not made out a ground for divorce, we have considered the matter carefully and we feel that on the evidence it should be granted. I will say first as to the ground of refusal or neglect to support, it appears from the evidence that on the 12th day of April, 1924, there was a lease drawn up between the parties here and Mr. Thurber, whereby the property in Barre was leased to Mr. Thurber, and the consideration of it was that Mr. Thurber should furnish to the petitioner in this case suitable support so far as food, heat, light, and shelter are concerned while residing on said place, and she has resided there since, and I think she testified that those matters have been furnished her. She said no clothing had been furnished her, but there was no evidence that she was in need of extra clothing or that she ever asked the petitionee to furnish her extra clothing, and we don't think that would constitute a ground for divorce because the statute provides that the refusal or neglect to provide suitable maintenance for the wife must be without cause, grossly or wantonly and cruelly, and I think our courts have held where a husband simply left and refused to support his wife--that and nothing more was insufficient ground for a divorce."

Discussing the ground of intolerable severity, the court said: "Now in this case there is evidence that on one occasion the petitionee pushed the petitioner and she would have fallen had it not been for a chair, and at that time he threatened her and shook his fist at her. I think she testified that is the only time he threatened her or shook his fist at her or offered any physical violence. There is no evidence that that act in itself caused her bodily harm and there is no evidence that ever thereafter he did such an act. The testimony shows that the alleged acts of cruelty consist of jawing and threatening to leave and bad language which she says caused her to be sleepless some nights and also caused her headaches, but the fact remains that during all that time she continued living with him and even when he left she did not want him to go, but advised him to stay, but that he persisted in leaving; so we think that the evidence is not sufficient to bring this case within the rule laid down in Mathewson v. Mathewson and Whitehead v. Whitehead, so that the petition is dismissed."

To this exceptions were taken by the petitioner on the ground that the uncontradicted evidence made out the case, counsel stating specifically as follows: "That the production of these headaches and sleeplessness and so forth is in itself intolerable severity; then the bringing of this petition; the writing of the letter by Mr. Wilson, accusing them of fraud brought the situation so that she was obliged to do something. She was left without any support except what was provided for in the lease, and in order to get that she had to release the insurance that she had helped pay for with her labor and services; that the whole evidence shows a case of intolerable severity."

The court said they would make findings of fact and file them "and you may have your exception." Findings were made of which paragraph 3 states in part: "The parties did not get along very well together, as the petitionee constantly nagged the petitioner, complained about things she did, threatened on many occasions to leave her, and was generally disagreeable the greater part of the time. This treatment caused the plaintiff to have severe headaches at times and also other times caused her considerable loss of sleep. On one occasion the petitionee pushed the petitioner with his hand, and if it had not been for a chair she would have fallen to the floor. On that occasion he shook his fist under her nose and threatened her. This was the only occasion on which the defendant ever used physical violence on the petitioner, or threatened to use it."

Paragraph 4: "The petitionee left the petitioner's place April 5, 1924, and since then the parties have never lived together. Just prior to the petitionee's leaving, all of the property on the petitioner's place belonging to him was collected and he sold the same at auction. Included in this property was property which he had bought from the income of the petitioner's real estate during coverture. At the time the petitionee left the petitioner, she did not want him to leave. She asked him not to go, as she felt he needed the home and care. The petitioner's daughter (Mrs. Thurber) and her husband also urged the petitionee not to leave at that time."

Paragraph 5: "We are unable to find that the treatment of the petitioner by the petitionee during the time they lived together caused her any physical injury, or that it was of such a character as to create a danger of such physical injury."

The petitioner excepted (1) to the finding shown in paragraph 5 as "contrary to the uncontradicted evidence in the case" and inconsistent with the previous finding set out in paragraph 3. (2) Because the court misapplied the law as appears by the court's statement when granting the petitionee's motion for the dismissal of the petition. The court erroneously held the law to be the same in intolerable severity as in the case of adultery and that as a matter of law upon the facts disclosed by the evidence the petitioner condoned the intolerable severity when she said that she did not want the petitionee to leave as she felt he needed the home and care. (3) The court completely ignored the false charges made against the petitioner that she was a disreputable woman and its failure to recognize these charges...