Colvin v. Colvin

• Decision Date: 12 November 1896
• Citation: 15 Wash. 490,46 P. 1029
• Court: Washington Supreme Court
• Parties: COLVIN v. COLVIN.

46 P. 1029

15 Wash. 490

COLVIN v. COLVIN.

Supreme Court of Washington

November 12, 1896

Appeal from superior court, Thurston county; T. M. Reed, Jr., Judge.

Action by Ignatius Colvin against Emma E. Colvin for divorce. From a judgment denying a divorce, and awarding costs and attorney's fees to defendant, plaintiff appeals. Affirmed.

Dunbar J., dissenting.

John R. Mitchell, for appellant.

John C Kleber and A. E. Rice, for respondent.

GORDON J.

The appellant (plaintiff below) brought this action to secure a divorce. His complaint, in substance, charges the respondent with continual, habitual unkindness, and that she is irreconcilably opposed to plaintiff's will, wishes welfare, business, and interests, and that it is not possible for the plaintiff to longer live with the defendant. The answer, after denying the material allegations of the complaint, contains an affirmative defense, setting up specific acts of cruelty by the plaintiff. At the trial of the cause, after appellant rested, respondent moved for a dismissal upon the ground that the testimony on the part of the plaintiff failed to show a prima facie case for the relief prayed. This motion was granted, findings of fact made, and judgment entered in favor of the respondent dismissing the cause, awarding costs to the respondent, and $300 as counsel fee. The appeal is from such judgment.

The appellant is 66 and the respondent 55 years of age. They were married in Thurston county, in the year 1866 and from that time until about the 15th of December, 1895, continued to live together as husband and wife. As issue of such marriage there are four children, ranging in age from 17 to 26 years. During their marriage they have accumulated property to the value of some twenty-five or thirty thousand dollars, and, in addition to the property so accumulated, the appellant is the owner in his own right of considerable property, which was acquired by him prior to his marriage with the respondent. Pursuant to an agreement between the parties, their property was divided through the instrumentality of arbitrators chosen by them, in the fall of the year 1895, and since such division the parties have lived separate and apart. For a number of years appellant has been afflicted with a cancerous affection of the upper lip and mouth, from which he continuously suffers more or less pain, and doubtless much of his irritability of temper is due to this disease. Among other things, the lower court found: "(6) That for about four years last past there have been occasional quarrels and misunderstandings between plaintiff and defendant, and for about sixteen months last past there has resulted from such misunderstandings and disagreements a complete estrangement between plaintiff and defendant. (7) That such estrangement is so great that the parties cannot henceforth peaceably live together. (8) That such quarrels, misunderstandings, and disagreements occurring aforesaid were not occasioned wholly by the fault or misconduct of the defendant, but that the plaintiff was equally in fault in regard thereto." The main contention of the appellant is that his case is strong enough to invoke the discretionary power conferred by subdivision 7 of section 764, 2 Hill's Code, which provides: "And a divorce may be granted upon application of either party for any other cause deemed by the court sufficient, and the court shall be satisfied that the parties can no longer live together." There was no proof that the appellant had sustained any mental or physical injury, or suffered any personal indignities, at the hands of the respondent, or that he lived in a state of danger or apprehension of violence, nor does the complaint charge any specific acts of cruelty on the part of the respondent, but it is insisted that the evidence does not justify the finding of the court that the "quarrels, misunderstandings, and disagreements occurring aforesaid were not occasioned wholly by the fault or misconduct of the defendant, but that the plaintiff was equally in fault in regard thereto." It appears from the evidence that appellant had posted notices upon the farm whereon he has resided since their property was divided, forbidding the respondent to go upon his land. Also that he had made it a condition in a lease that the lessee should not permit respondent to go upon the demised premises. It further appears that, while there were numerous wordy disputes and disagreements between the parties, no personal violence was ever offered or threatened by either of them towards the other. Examined as a witness in his own behalf, appellant said: "We couldn't agree about certain things for the last year or two; *** get to disputing over some trivial matter; *** just like two can't agree, you know, get to talking over things, get to quarreling about one thing and another; sometimes she would get up and leave, sometimes I did; so we finally quit entirely." He frankly admitted that the measure of his blame was as great as that of the respondent, and, indeed, we think that this conclusion is justified by the entire...