De Cloedt v. De Cloedt

• Decision Date: 21 June 1913
• Parties: ELIESE DE CLOEDT, Respondent, v. FRANK DE CLOEDT, Appellant
• Court: Idaho Supreme Court

133 P. 664

24 Idaho 277

ELIESE DE CLOEDT, Respondent, v. FRANK DE CLOEDT, Appellant

Supreme Court of Idaho

June 21, 1913

DIVORCE-EXTREME CRUELTY - GROUNDS - DRUNKENNESS - RELIGIOUS PERSECUTION - NEGLECT - BLOWS - VILE LANGUAGE - FRAUDULENTLY DEPRIVING PLAINTIFF OF PROPERTY RIGHTS.

1. Sec 2657, Rev. Codes, provides as grounds for divorce the following: Subd. 2. "Extreme cruelty." Subd. 5. "Habitual drunkenness."

2. Sec 2649, Rev. Codes, defines extreme cruelty: "Extreme cruelty is the infliction of grievous bodily injury or grievous mental suffering upon the other by one party to the marriage."

3. Sec 2652, Rev. Codes, defines habitual intemperance "Habitual intemperance is that degree of intemperance from the use of intoxicating drinks which disqualifies the person a greater portion of the time from properly attending to business, or which would reasonably inflict a course of great mental anguish upon the innocent party."

4. The legislature by the provisions of sec. 2652, in defining habitual drunkenness, does not mean that a person would have to be drunk all the time, neither does it provide that he shall be incapacitated from pursuing his usual labors during any particular hours or at any time. It does not provide that the person shall be generally drunk or that he is drunk more hours than he is sober, but it does mean one who has a fixed habit of frequently getting drunk, and that such drunkenness causes the innocent party to suffer mental anguish and suffering. It is sufficient that he have the habit and that the habit is firmly fixed upon him; that he gets drunk with recurring frequency or that he is unable to resist when opportunity and temptation is presented.

5. In a suit for divorce, where the complaint alleges extreme cruelty, and acts of cruelty are alleged, as controversies and quarrels over religious matters, and evidence is introduced which shows that the defendant persisted during the period of marriage in reviling the Protestant faith and applying vile names to the Protestant reformer, Luther, and in furnishing literature, and insisting at different times when the plaintiff was tired and after hard work, that she "pray the beads" with him, and as a result that plaintiff was sickened and affected nervously, and that such remarks be- came a horror, and would drive her to frenzy, such evidence is admissible, and may be considered as corroborative of the allegations of the complaint as to acts of cruelty.

6. In a divorce proceeding, where the plaintiff testifies that she was not properly cared for during her marriage relation with the defendant at times when she was sick, and that vile language was used by the defendant addressed to her, calling her vile names, such evidence is proper as showing acts of the defendant proving cruelty and improper treatment.

7. In an action charging extreme cruelty, where it is alleged and shown that blows were inflicted upon the plaintiff and the defendant hit the plaintiff with his fist, such evidence is admissible, and tends to prove acts of extreme cruelty when considered with other evidence in the case.

8. The degree of corroboration required by sec. 2661 of the Rev. Codes has never been defined, and it has been said that "in the very nature of the case, it would be impossible to lay down any general rule as to the degree of corroboration which will be requisite; hence the statute only requires that there shall be some corroborating evidence," and the statute can only be construed that the testimony of the plaintiff as to extreme cruelty must be sufficiently corroborated. (Approved in Bell v. Bell, 15 Idaho 7, 96 P. 196.)

9. In a divorce suit, where property rights are involved, and a post-nuptial settlement is presented and relied upon as a settlement of all property rights, and such agreement is challenged on the ground that it is unfair and inequitable and fraudulent, the evidence must show clearly and with certainty that the post-nuptial settlement, to be binding under the most favorable circumstances, must in every way be fair and unexceptionable on equitable grounds.

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Carl A. Davis, Judge.

An action for divorce. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondent.

Cavanah, Blake & MacLane and W. A. Stone, for Appellant.

A party may not allege as a constituent ground of one cause of action for divorce facts which belong in a different category but are of themselves insufficient to justify divorce on the latter ground. (Haskell v. Haskell, 54 Cal. 262.)

To constitute ground for divorce, habitual intemperance must either have disqualified the defendant from attending to business or must have inflicted great mental anguish upon the plaintiff. (Rev. Codes, sec. 2652.)

A collection of cases as to what constitutes habitual intemperance or habitual drunkenness within the meaning of the divorce law may be found as follows: Dennis v. Dennis, 68 Conn. 186, 57 Am. St. 95, 36 A. 34, 34 L. R. A. 449; 17 Cent. Dig., col. 383; 7 Dec. Dig., p. 1193; 4 Words and Phrases, p. 3205.

That failure to provide care or medical attendance is not of itself ground for divorce, see Bonney v. Bonney, 175 Mass. 7, 78 Am. St. 473, 55 N.E. 461; Jenness v. Jenness, 60 N.H. 211.

Mutual wrangling over money matters does not make out a case of extreme cruelty between husband and wife. (Beller v. Beller, 50 Mich. 49, 14 N.W. 696.)

Family quarrels are not ground for divorce. (Rose v. Rose, 50 Mich. 92, 14 N.W. 711.)

Abusive language causing nervous sickness, which is not serious and does not interfere with the wife's duties, is not such cruel or grievous mental suffering as will furnish ground for divorce. (Mahnken v. Mahnken, 9 N.D. 188, 82 N.W. 870.)

In considering cases of cruelty, the situation in life, refinement or lack thereof, and habits of the parties, must be considered. (David v. David, 27 Ala. 222; Lauber v. Mast, 15 La. Ann. 593; Kline v. Kline, 50 Mich. 438, 15 N.W. 541; Shuster v. Shuster, 3 Neb. (Unof.) 610, 92 N.W. 203.)

A separation agreement, reasonable and just in its provisions, contemplating the division and disposition of the property of the parties and the relinquishment by one of all claim or interest in the estate of the other, is valid and not contrary to public policy where the relations between husband and wife are such as to make separation inevitable. ( King v. Mollohan, 61 Kan. 683, 60 P. 731, affirmed 61 P. 685; Wickersham v. Comerford, 96 Cal. 433, 31 P. 358; Daniels v. Benedict, 97 F. 367, 38 C. C. A. 592; Luttrell v. Boggs, 168 Ill. 361, 48 N.E. 171; Henderson v. Henderson, 37 Ore. 141, 82 Am. St. 741, 60 P. 597, 61 P. 136, 48 L. R. A. 766.)

The fact that in a separate agreement the wife gets less than she would be entitled to on a legal distribution of the estate is no ground for setting it aside in the absence of fraud, duress or undue influence. (Daniels v. Benedict, 97 F. 367, 38 C. C. A. 592; Sumner v. Sumner, 121 Ga. 1, 48 S.E. 727.)

Such an agreement, when made, is a contract between the parties, into the reasonableness of which the courts will not inquire so long as the execution of the contract is not attacked. ( Corker v. Corker, 87 Cal. 643, 25 P. 922.)

O. M. Van Duyn and Wyman & Wyman, for Respondent.

"The defendant's excessive use of intoxicants is made to appear from the evidence, and while this, of itself, may not be sufficient to sustain the charge of habitual drunkenness, it was a contributory cause to the other charge, to wit, that of extreme cruelty." (Tietken v. Tietken, 60 Neb. 138, 82 N.W. 367; Powers v. Powers, 20 Neb. 529, 31 N.W. 1; Grierson v. Grierson, 156 Cal. 437, 134 Am. St. 137, 105 P. 120.)

The obvious purpose of sec. 2661, Rev. Codes, is to prevent collusion between the parties. Where the reason for the rule fails, as it does here, the rule itself might very well be held to fail. Corroboration is, however, required by the great weight of authority. As to what is corroboration and the extent to which it is required: 14 Cyc. 689; Andrews v. Andrews, 120 Cal. 186, 52 P. 298; Smith v. Smith, 119 Cal. 183, 48 P. 730, 51 P. 183; Evans v. Evans, 41 Cal. 103; Baker v. Baker, 13 Cal. 88; Avery v. Avery, 148 Cal. 239, 82 P. 967; McMullin v. McMullin, 140 Cal. 112, 73 P. 808; Cooper v. Cooper, 88 Cal. 45, 25 P. 1062; Venzke v. Venzke, 94 Cal. 226, 29 P. 499; Avery v. Avery, 148 Cal. 243, 82 P. 967; Bell v. Bell, 15 Idaho 8, 96 P. 196; Clopton v. Clopton, 11 N.D. 212, 91 N.W. 46; Tuttle v. Tuttle, 21 N.D. 503, Ann. Cas. 1913B, 1, 131 N.W. 460.

Inasmuch as the ground that the decree was granted on was that of extreme cruelty, we call to the court's attention the definition of that phrase in California, to which we are indebted for our statute upon the subject. (Hatton v. Hatton, 136 Cal. 353, 68 P. 1016; Andrews v. Andrews, supra; Barnes v. Barnes, 95 Cal. 176, 30 P. 298, 16 L. R. A. 660; 9 Am. & Eng. Ency. of Law, 791; 1 Bishop on Marriage, Divorce and Separation, sec. 1580; Wright v. Wright, 6 Tex. 3; Gibbs v. Gibbs, 18 Kan. 419; Mercer v. Mercer, 114 Ind. 558, 17 N.E. 182; Doolittle v. Doolittle, 78 Iowa 691, 43 N.W. 616, 6 L. R. A. 187; Bonney v. Bonney, 175 Mass. 7, 78 Am. St. 473, 55 N.E. 461.)

Where as here, the husband seeks, through a post-nuptial agreement, to control the disposition of the property upon a decree of divorce, the courts refuse to be so bound unless the agreement was entered into freely and voluntarily, with full knowledge of the facts and the law, after disinterested advice, where there was practically no coercion, deception, or fraud, and where the agreement fully protects the property rights of the wife. Failing in any of these respects, it fails to be of binding...