Claude v. Claude

• Decision Date: 06 November 1946
• Citation: 174 P.2d 179,180 Or. 62
• Parties: CLAUDE <I>v.</I> CLAUDE
• Court: Oregon Supreme Court

180 Or. 62

174 P.2d 179

CLAUDEv.

CLAUDE

Supreme Court of Oregon.

Argued September 17, 1946.

Modified November 6, 1946.

Rehearing denied December 20, 1946.

Divorce — Condonation

1. Condonation of a marital offense, except adultery, cannot be established by implication from the voluntary cohabitation of the parties after knowledge thereof, but offense must be expressly forgiven to constitute a bar to any of the causes of divorce named in statute except adultery.

Divorce — Condonation

2. Condonation is conditional, and, where there is repetition of the offense after condonation, the condonation is deemed withdrawn or avoided.

Divorce — Condonation

3. The alleged fact that wife continued to cohabit with husband for three days after she filed her complaint for divorce on ground of cruel and inhuman treatment did not constitute "condonation" of husband's alleged cruel and inhuman treatment.

Appeal and error — Findings of trial court

4. On disputed questions of fact, the Supreme Court will give weight to the trial judge's findings in a suit in equity and will not lightly set them aside, but the Supreme Court is not bound by such findings, and, where the evidence is conflicting, has a duty to examine the record with care to determine the truth.

Divorce — Counter claim

5. In wife's suit for divorce, wherein husband filed counterclaim for divorce, evidence required granting of divorce to husband because of wife's long-continued, renewed, and persistent association with another man.

Divorce — Custody of children

6. In divorce suit, wherein husband was granted a divorce because of wife's long-continued, renewed, and persistent association with another man, evidence required granting of custody of 17 year old son to the husband and custody of 6 and 8 year old daughters to the wife.

Divorce — Custody of children

7. The custody of little girls should not be taken from their mother in a divorce suit except for the most cogent reasons.

Husband and wife — Partnership

8. A contract between husband and wife for creation of a partnership with division of property one-third to wife and two-thirds to husband, and providing that, should the parties resume their marital life and continue to live together as husband and wife for seven years from and after the agreement, the common properties of the parties should be divided equally between them, did not require the wife to resume marital relations with the husband.

Frauds, statute of — Evidence

9. Where action is based on fraud, and there is a claim by the party seeking cancellation of a written agreement or other relief that he was induced to enter into the agreement by a fraudulent promise of the other party, evidence of such fraudulent representations cannot be excluded by invoking the aid of the statute of frauds.

Frauds, statute of — Partnership agreement

10. In wife's suit for divorce, wherein wife sought specific performance of a partnership agreement between husband and wife, and wherein husband demanded cancellation of agreement on ground that wife was guilty of fraud, evidence as to wife's oral representations to husband was properly admitted over objection that it violated statute of frauds.

Husband and wife — Partnership agreement

11. In wife's suit for divorce, wherein wife sought specific performance of a partnership agreement between husband and wife, evidence was insufficient to establish that wife, when she made representations to husband respecting association with another man, had any fraudulent intent to repudiate those promises, and that therefore husband was not entitled to have the agreement canceled on ground of fraud.

Divorce — Partnership agreement

12. Where husband was granted a divorce but was denied cancellation of partnership agreement between him and wife whereby wife was to have one-third interest in all property of the parties, decree awarding the one-third interest in the properties to the wife should grant to the husband an undivided one-third part in the realty awarded to the wife.

                  See 17 Am.Jur. 256; 27 C.J.S., Divorce, § 61
                

IN BANC.

Appeal from Circuit Court, Malheur County.

FORREST L. HUBBARD, Judge.

Charles W. Swan, of Vale (with Robert E. Lees, of Ontario, and Earl E. Garrity, of Nampa, Idaho, on brief), for respondent.

P.J. Gallagher, of Ontario, for appellant.

AFFIRMED IN PART; REVERSED IN PART. REHEARING DENIED.

LUSK, J.

This is a divorce suit in which both husband and wife seek a dissolution of the marriage contract. The Circuit Court found both parties at fault, and, applying the "clean hands" doctrine, declined to grant relief to either. Both parties have appealed from the decree of dismissal.

In her complaint the wife charges her husband with cruel and inhuman treatment, consisting, among other things, of physical assaults, threats to do her bodily harm, cursing and reviling her, accusing her of having affairs with other men, and refusing to participate with her in the social and community life of Ontario, the city near which their home is located. The husband, by his answer and cross-complaint, denies her accusations of misconduct, and charges his wife with extravagance, neglect of her home, and a love affair with another man.

As to the wife's charges the Circuit Court found that for several years "the husband has pursued a course of cruel treatment of the wife by using profane and abusive language to the wife in the presence of their children and others, often threatening to do her bodily harm and employing physical force upon and against the wife and subjecting her to physical violence, all in an apparent effort to compel the wife to conform in all ways to the wishes and ideas of the husband."

The court further found "that during the latter part of July or the first part of August, 1944, the parties quarreled and the husband again visited physical violence upon the wife".

Respecting the alleged misconduct of the wife the court found:

"That for several months prior to January, 1944, and continuing until their final separation in July or August, 1944, the wife has, with the exception of about two months immediately after March 13th, 1944, continuously associated with a man by the name of Bernard Anderson in such a manner and to such an extent that her name has been linked with that of the said Anderson in common gossip and in the vicinity of Ontario, Oregon, and that, while there is no direct evidence of improper relations between the wife and the said Anderson, yet the conduct of the wife has been such in this regard as to incite such gossip and has been unbefitting a wife and mother, and has caused the husband and older children great embarrassment and humiliation."

The parties were married at Fresno, California, on February 19, 1924. Mrs. Claude was then fourteen years of age and her husband twenty-nine. They have four children — Louise, a daughter, twenty years of age, and, as counsel for the plaintiff inform us, married since the trial of this case; Eugene, a son, seventeen years of age; Colleen, a daughter, eight years of age; and Jacquolyn, a daughter, six years of age. For a number of years prior to their marriage the defendant had engaged in the sheep business, either on his own account or as an employee of others, and their married life began, and most of it has been spent, on a sheep ranch in Malheur County. At the time of their marriage the defendant was worth, according to his own testimony, $8,000.00; according to hers, less than $1,000.00. Through hard work and sacrifice their affairs prospered to such an extent that today their holdings, consisting of livestock, lands, farm equipment, a house in Ontario, their home in the vicinity of Ontario, cash in bank, bonds, and other property, are worth probably in excess of $100,000.00. The defendant's estimate is between $60,000.00 and $70,000.00; the plaintiff's $150,000.00. The trial court found the value to be between $50,000.00 and $100,000.00.

Mrs. Claude worked with her husband in the lambing camps, the sheep camps, and on the ranches. In this, as the evidence indicates, she did no more than was customary among women in her station in life in the country in which she lived. Her husband, however, seems to have recognized that her labors had contributed substantially to his success, for, on June 3, 1935, he entered into a partnership agreement with her in which he acknowledged her ownership of a one-third interest in the property devoted to their livestock and farming business. Thereafter they transacted their business under the firm name of "Claude & Claude", and in that name kept bank accounts upon which they both were authorized to draw checks.

Mr. and Mrs. Claude appear not to have had any serious domestic difficulties until after 1938 when they acquired a place near Ontario, consisting of a comfortable house and sixty-eight acres of land, which is referred to in the testimony as the "ranch home". This was their home until their final separation. Mrs. Claude desired, and, we may say, was entitled to enjoy a measure of social life — something she had not had in the sheep camps of Malheur County — and to this end she joined a number of social and fraternal organizations in Ontario. Also, she was active as a member of the War Chest Committee for Malheur County and in blood donor work. In these latter activities she became associated with Bernard Anderson, the man referred to in the Circuit Court's findings above quoted.

In January, 1944, after a quarrel, Mrs. Claude left home and went to Boise, Idaho, taking her three daughters with her. On January 28, 1944, the defendant filed suit for divorce, alleging, among other things, his wife's wrongful association with an unnamed Ontario man, evidently Anderson, and thereafter Mrs. Claude filed a cross-complaint alleging various acts of cruel and inhuman treatment. After prolonged negotiations between the parties and their attorneys they agreed to compose their differences, and,...