Cooper v. Cooper

• Decision Date: 08 November 1912
• Docket Number: 7,721
• Citation: 99 N.E. 782,51 Ind.App. 374
• Parties: COOPER v. COOPER
• Court: Indiana Appellate Court

99 N.E. 782

51 Ind.App. 374

COOPER v. COOPER

No. 7,721

Court of Appeals of Indiana

November 8, 1912

From Hendricks Circuit Court; James L. Clark, Judge.

Action by Annetta Cooper against William Cooper. From a judgment for plaintiff, the defendant appeals.

Affirmed.

E. M Hornaday, and Salem D. Clark, for appellant.

Charles E. Averill, for appellee.

OPINION

HOTTEL, C. J.

This was an action for divorce. The complaint charged appellant with cruel and inhuman treatment, and specified the acts and conduct of appellant relied on as constituting such treatment. The cause was put at issue by a general denial. A trial by the court resulted in a finding for appellee, and a judgment and decree granting her a divorce, the custody of three minor children, named in the decree, and a monthly allowance for their maintenance and support.

Appellant filed a motion for a new trial, which was overruled, and this ruling presents the only error relied on in the appeal. Of the grounds of the motion for a new trial, none is presented or urged, except the insufficiency of the evidence, and error in excluding a letter admitted by appellee to have been written by her and sent to appellant some eight or nine years before the filing of her complaint.

As one of the acts constituting cruel and inhuman treatment, it is averred in the complaint that appellant "habitually charged plaintiff with having sexual illicit intercourse with other men". It has been expressly held by the Supreme Court that such an imputation by the husband against the character and chastity of the wife, whose reputation it is his duty to support and defend, when made in the absence of facts justifying the same, will cause such mental pain, shame and humiliation on the part of an innocent and sensitive wife as will constitute "cruel and inhuman treatment" within the meaning of the statute making such treatment a cause for divorce. Shores v. Shores (1864), 23 Ind. 546; Graft v. Graft (1881), 76 Ind. 136; Eastes v. Eastes (1881), 79 Ind. 363, 371; Massey v. Massey (1907), 40 Ind.App. 407, 410, 80 N.E. 977, 81 N.E. 732.

We have examined the evidence in the case with care, and find that this specification of cruel treatment, as well as others, were abundantly supported by the evidence. In fact, we do not understand that appellant is seriously contending that the charge of cruel treatment did not have sufficient evidence for its support, but it is insisted that the proof fails to show a separation at the time of the filing of the suit.

The complaint avers in substance that the house in which appellant and appellee were living at the...