Cote v. Cote

• Decision Date: 27 April 1966
• Docket Number: No. 14456,14456
• Citation: 404 S.W.2d 139
• Parties: Delmar E. COTE, Appellant, v. Anne M. COTE, Appellee. . San Antonio
• Court: Texas Court of Appeals

Page 139

404 S.W.2d 139

Delmar E. COTE, Appellant, v. Anne M. COTE, Appellee.

No. 14456.

Court of Civil Appeals of Texas.

San Antonio.

April 27, 1966.

Melvion R. Luter, San Antonio, for appellant.

Tom H. King, San Antonio, for appellee.

CADENA, Justice.

Delmar E. Cote appeals from the judgment of the trial court granting his wife, Anne M. Cote, a divorce on the ground of cruetly, awarding her custody of their minor child, and decreeing a division of their community property.

Appellant's first contention is that the evidence was insufficient to support the judgment of divorce.

Since the decision of Chief Justice Hemphill in Sheffield v. Sheffield, 3 Tex. 78 (1948), it has been recognized that the ill treatment of one spouse by the other may be of such a nature as will render their further living together insupportable, even in the absence of personal violence, and that a series of vexations and deliberate insults and provocations can, under our statute, constitute grounds for divorce. There are innumerable acts or combinations of misconduct which can amount to cruel treatment under the provisions of Article 4629, Vernon's Ann.Civ.St. Counts v. Counts, Tex.Civ.App., 358 S.W.2d 192, wr. dism. The reaction to a course of misconduct is strictly personal to the aggrieved spouse, and conduct which produces no mental distress or anguish to one person may amount to an insupportable burden to another person of different sensibilities. Daughtry v. Daughtry, Tex.Civ.App., 312 S.W.2d 957, no writ. Each case must be determined upon its own facts, so that generalized statements from other cases are of little help.

The record in this case reflects a situation where the wife was earning in excess of $800.00 a month. The husband was engaged in the operation of an incorporated business, from which he drew $380.00 each month. The husband's earnings fell short of meeting the monthly expense of maintaining the home of the parties by more than $200.00 per month, although he testified that he had always been able to support his family and that his wife worked merely because she wanted to.

From the evidence which we shall presently summarize, and from his observation of the parties while on the stand, the trial judge was justified in concluding that the husband deeply resented the superior earning ability of his wife and, as a result, adopted an attitude which was necessarily disruptive of conjugal harmony. It is, of course, not unusual today for married women to be gainfully employed, nor is it unheard of for a wife to earn more than does her husband. Even in cases where the wife is employed, it may be that in the majority of cases the husband, nevertheless manages the financial affairs of the family. But the evidence here supports the conclusion that the husband assumed an unusual and uncongenial 'watchdog of the treasury' attitude.

When the husband discovered that, from her salary of $800.00 per month, his wife was setting aside the monthly sum of $25.00 for the purpose of buying her own clothes and other personal needs, he turned white with anger and accused her of 'stealing' his money. On many occasions, he disparaged and belittled his wife in public. Despite the fact that her earnings constituted better than 70% Of the family's income or, perhaps, because of that fact, he often described his wife in public, and in her presence as an elephant, an ox and a stupid person. He objected when his wife's friends visited her in her home. On one occasion, when a member of one of his wife's clubs called on the wife to urge her to run for president of the organization, he ordered the visitor to leave, telling her that he did not appreciate having his wife's friends coming to his house to talk to her. When the wife made the rather predictable comment that it was as much her house as his, he retorted that if she did not like it she 'could pick up and leave.'

On the very day when, according to his testimony, his wife accompanied him to the office of a lawyer for the purpose of making an effort to resolve their difficulties and attempt a reconciliation, he closed her charge accounts without telling her about it. Less than a week before the parties separated he withdrew, without informing his wife, in excess of $2,100.00 from a savings account which they were accumulating for the purpose of educating their child, leaving a balance of only $100.00. When first questioned concerning this withdrawal he categorically denied it, but after the records of the banking institution had been introduced in evidence, he admitted the fact. $1,400.00 of the amount so withdrawn was used by him to pay off the outstanding indebtedness on his car and the remainder, according to his testimony, he 'spent for different things' which he did not identify .

The wife had been, for some time, a director of the company which her husband operated. About four months prior to their final separation a meeting of the board of directors was held, apparently without the wife's knowledge, and at this meeting she was removed as a director. She was never informed of this action of the board and first found out about it at the trial.

Mrs. Cote testified that the strain of living with a husband who often insulted her in public and who accused her of stealing money which he described as his, although she had earned it, kept her constantly nervous and upset. When she developed an ulcer her husband responded, not with expressions of sympathy and solicitude, but with reproaches. His reaction was: 'I don't know why you have one. I'm the one that should have one. You don't have any reason to have an ulcer.'

The conduct of the husband in this case goes beyond the mere arguments and spats which have been said to be an unavoidable part of married life. The husband treated his wife as a subordinate, not a partner, and followed a course of action designed to impress on their friends and acquaintances that she was incompetent and stupid. The trial judge was justified in finding that this course of conduct, when directed toward a woman whom the judge observed and whose sensibilities, character and personality he had an opportunity to evaluate, was of such a nature as to render the further living together of the parties as man and wife insupportable.

Appellant contends that, even if it be conceded that his course of conduct was of such a nature as to justify the granting of a divorce to the wife, she cannot rely thereon since, by continuing to live in the same house with him, she condoned such conduct.

In his answer to the divorce action appellant did not plead the affirmative defense of condonation. The wife's testimony did show that the misconduct of which she complained spanned a relatively long period of time.

In Thomason v. Thomason, Tex.Civ.App., 332 S.W.2d 148, no writ, the Court stated that, although the best practice is that the affirmative defense of condonation should be pleaded, the trial court should consider such evidence even in the absence of such pleadings. In support of this statement, the Court cited Barta v. Barta, Tex.Civ.App., 283 S.W. 201, wr. ref., and Crittenden v. Crittenden, Tex.Civ.App., Civ.App., 214 S.W.2d 670, no writ.

Neither the Barta nor the Crittenden case supports the conclusion reached in Thomason. In Barta, the opinion of the Court expressly recites that the defendant had affirmatively pleaded the defense of condonation, although the averment of condonation was in the form of a conclusion, without allegation of specific facts upon which defendant relied. Nevertheless, although apparently no special exceptions were filed by plaintiff, the Austin Court said: 'Condonation has been generally held to be an affirmative or special defense, requiring the facts upon which it is based to be specially pleaded. Wright v. Wright, 6 Tex. 3; Nogees v. Nogees, 7 Tex. (538,) 539, 58 Am.Dec. 78. * * * A plaintiff in a divorce suit is certainly entitled to be informed as to the facts the defendant bases an allegation of condonation upon before the trial, in order to be prepared to meet the issue with proof. In passing, we make mention of this matter so that appellee may amend in this particular, if he desires to do so in the event of another trial of this case.' 283 S.W. at p. 202.

Barta, then, far from holding that condonation need not be pleaded affirmatively, is authority for the proposition that, in order for the defense to be available, the particular acts asserted to establish condonation must be specifically set forth.

In the Crittenden case defendant argued that the evidence established, as a matter of law, a condonation of the alleged cruelty. The Galveston Court, after stating that condonation is an affirmative defense which must be pleaded, went on to say that it could 'not hold that the trial court erred in refusing to sustain an affirmative defense which was not pled.' 214 S.W.2d at p. 671.

In any event, we do not believe that the evidence in this case established condonation as a matter of law. The record discloses that for several months the parties were barely on speaking terms. The wife testified that for several years she had tried to hold the marriage together for the sake of their child, and that she deliberately delayed filing suit for divorce from August, 1964, until January, 1965, because she deemed it in the best interest of the child to try to keep the family together until after the Christmas season. Further, condonation involves not only the concept of foregiveness by the offended party, it also proceeds on the idea of repentance by the offender, and it is not operative where subsequent events show that no repentance, in fact, existed. Absent evidence of repentance, evidence indicating that the offender did not repent indicates that the offended party did not condone. Armstrong v. Armstrong's Adm'r, 27 Ind. 186; Hill v. Hill, 124 Or. 364, 264 P. 447; Rushmore v. Rushmore, 174 A. 469, 12 N.J.Misc. 575, aff'd, 117 N.J.Eq. 451,...