Clark v. Clark, 6414

• Decision Date: 24 June 1937
• Docket Number: 6414
• Citation: 58 Idaho 37,69 P.2d 980
• Parties: SIGEL CLARK, Appellant, v. MONTRIE HERON CLARK, Respondent
• Court: Idaho Supreme Court

69 P.2d 980

58 Idaho 37

SIGEL CLARK, Appellant, v. MONTRIE HERON CLARK, Respondent

No. 6414

Supreme Court of Idaho

June 24, 1937

DIVORCE-EXTREME CRUELTY-EVIDENCE-REVIEW-APPEAL AND ERROR-MEMORANDUM DECISION OF TRIAL COURT.

1. The evidence was conflicting as to whether the wife used epithets toward her husband and his children by a former marriage. Held, the question as to whether she was guilty of extreme cruelty, in that particular, was for the trial judge.

2. The wife, in filing a declaration of homestead on the husband's separate property, was within her legal rights.

3. A memorandum decision, signed by the trial judge and filed in the district court prior to making findings and conclusions is not properly before the supreme court for consideration although appellant has caused a certified copy thereof to be filed here.

4. The law does not require trial judges to render memorandum decisions, and such decisions will not be given controlling weight in affirming, modifying or reversing judgments appealed from.

5. If the trial judge's decision, consisting of findings and conclusions, follows the law and is supported by the evidence, the judgment should be affirmed whether theories prompting its rendition were sound or unsound.

6. If the trial judge's decision violates the law, or is not supported by the evidence, the judgment should be reversed although the judge may have expressed sound theories in communications to counsel prior to its rendition.

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Charles E. Winstead, Judge.

Action for divorce. Judgment for defendant. Affirmed.

Affirmed. Costs awarded to respondent.

Elam &amp Burke and C. S. Hunter, for Appellant.

Grievous mental suffering may be inflicted by action and conduct relating to property as well as other matters; the test being whether such acts and conduct were of a nature and character as to destroy the peace of mind and happiness of the injured party. (Bickford v. Bickford, 94 Mont. 314, 22 P.2d 306; Williams v. Williams, 85 Mont. 446, 278 P. 1009.)

Trial court should have considered evidence with respect to respondents' conduct in relation to appellant's home along with all other evidence to determine whether evidence as a whole entitled appellant to a divorce. (Sec. 31-605, I. C. A.; Beckstead v. Beckstead, 50 Idaho 556, 299 P. 339; Habeck v. Habeck, 51 S.D. 455, 214 N.W. 846.)

Paris Martin, Jr., and P. B. Carter, for Respondent.

Findings and conclusions of trial court in divorce case on conflicting evidence are conclusive on appeal. (Black v. Black, 33 Idaho 226, 191 P. 353; Cox v. Cox, 45 Idaho 49, 260 P. 693; Piatt v. Piatt, 32 Idaho 407, 184 P. 470; Schuster v. Schuster, 88 Utah 257, 53 P.2d 428.)

Failure to show grievous mental suffering is in itself grounds for sustaining findings and conclusions of trial court. Cruelty must arise to dignity of "extreme cruelty." (Sec. 31-605, I. C. A.; Reed v. Reed, 119, Okla. 5, 246 P. 413; Ritter v. Ritter, 103 Cal.App. 583, 284 P. 950; Waldron v. Waldron, 85 Cal. 251, 24 P. 649, 858, 9 L. R. A. 487; Donaldson v. Donaldson, 31 Idaho 180, 170 P. 94.)

MORGAN, C. J. Holden and Ailshie, JJ., concur. Givens, J., BUDGE, J., Dissenting.

OPINION

MORGAN, C. J.

--Appellant commenced this action against respondent to procure a decree dissolving their bonds of matrimony and awarding to him certain property described in the complaint. The trial resulted in a decree that the marriage be not dissolved, from which this appeal is prosecuted.

The cause of actions stated in the complaint, and which evidence introduced on behalf of appellant tended to establish, is extreme cruelty, which I. C. A., sec. 31-605, defines as follows:

"Extreme cruelty is the infliction of grievous bodily injury or grievous mental suffering upon the other by one party to the marriage."

It is not contended Mrs. Clark inflicted bodily injury on her husband, but he alleges her conduct caused him grievous mental suffering.

Mr. and Mrs. Clark were married in 1925. Each had been married before and he is the father of a daughter and four sons, who are grown, the issue of his former marriage. Most of their disagreements arose from two causes: 1. Her extreme dislike for his children. 2. She filed a declaration of homestead on his separate property, which they occupied as their place of residence, and refused to join him in mortgaging it, which refusal resulted in litigation between them prior to the commencement of this action. (Clark v. Clark, 56 Idaho 6, 47 P.2d 914.) The acts of cruelty relied on by appellant, other than the refusal to join in the mortgage, consisted, largely, of expithets which, evidence introduced on his behalf tended to show respondent applied to him and his children. The evidence on this point is conflicting and, with respect to this phases of the case, the trial judge found:

"That defendant disliked plaintiff's adult children and that her conduct in this regard tended to promote a lack of harmony in the household and was undoubtedly carried to unjustifiable extremes; that defendant's use of epithets toward either plaintiff or his adult children in this respect is not sufficient of itself to constitute extreme cruelty."

In Piatt v. Piatt, 32 Idaho 407, 184 P. 470, the first section of the syllabus, which was by the court and correctly reflects the part of the opinion it relates to, is as follows:

"1. Where a divorce is sought on the ground of extreme cruelty, causing grievous mental suffering, the evidence must be sufficient to satisfy the trial court that the party at fault has been guilty of acts of cruelty which have caused grievous mental suffering to the complaining party. The finding will not be disturbed unless the evidence in support thereof is so slight as to indicate a want of good judgment and an abuse of discretion by the trial court."

On the point that respondent refused to join appellant in the execution of a mortgage on his separate property, it was shown that because of her refusal he was unable to refinance the mortgage indebtedness, which existed against it, and that the mortgage was foreclosed and a sheriff's deed had been issued whereby he had been divested of his title and would lose possession at the expiration of the period of redemption. Respondent testified she refused to join in the execution of the mortgage because appellant insisted it be made to the Federal Land Bank, which required that one of his sons join in the execution of it, and that the son had stated if he got control of the property he would not allow her to occupy it; that she was at all times willing, and had so informed appellant, to join him in the execution of a mortgage which would not result in giving his son a hold on, or control of the property. Just what interest in or control of the property the son would have had by joining in the execution of the mortgage is not clear, but it is the reason assigned by respondent for her refusal to join in the execution of it.

In Clark v. Clark, supra, we held respondent herein was within her legal rights when she filed a declaration of homestead on appellant's separate property, and, of course, she could not be compelled to join in the execution of the mortgage. It is insisted by counsel for appellant, however, that a legal rights may be so exercised by one spouse as to constitute extreme cruelty to the other. That contention may be sound, but it is not necessary for us to decide, in this case, whether it is or not.

The trial judge found "that the defendant filed a declaration of homestead upon the plaintiff's separate property and that she was within her rights in so doing, and that the same does not constitute extreme cruelty under the statute." (See Hofman v. Hofman, 40 Ind.App. 476, 82 N.E. 477.) The findings of fact, conclusions of law and decree show a copy thereof was received by counsel for appellant. If they made any objection to that finding or requested the trial judge to find respondent's acts in placing the declaration of homestead on appellant's separate property and in refusing to join him in the execution of a mortgage on it were wrongful or malicious, or done with the intent to, or did, inflict on him...