Crossman v. Crossman
| Decision Date | 04 February 1964 |
| Docket Number | No. 1040,1040 |
| Citation | 197 A.2d 818,124 Vt. 127 |
| Parties | Barbara Hayward CROSSMAN v. Lyle Percy CROSSMAN. |
| Court | Vermont Supreme Court |
Theodore Corsones, Rutland, for libelant.
Angelo J. Spero, Rutland, for libelee.
Before HOLDEN, C. J., SHANGRAW, BARNEY and SMITH, JJ., and HILL, Superior Judge.
This is an appeal from an order dismissing the wife's libel for divorce in proceedings before the Rutland County Court. The action was founded on the claim of intolerable severity. While the libelee was represented by counsel at the hearing in County Court, the record discloses that such counsel presented no witnesses in behalf of the libelee, did not cross-examine the libelant or her witnesses, and made only a statement relative to the libelee's payment of support money in the course of the proceedings. It is also noted that although the counsel for the libelee has entered an appearance in the appeal to this Court, that no brief has been filed here for the libelee. Under such circumstances the proceedings must be regarded as uncontested on the part of the libelee.
The findings of fact below establish that the parties were married on December 29, 1961, and lived in Retland and Mendon until they separated on or about June 1, 1962. A child was born to them on Aug. 2, 1962.
Trouble started between the parties shortly after the marriage, with the libelee finding fault with the meals prepared by the libelant and eating many of his meals with his mother, with whom he spent a considerable part of his time. Libelee had a quick temper, slammed things around, and used profanity in the presence of his wife, child and others.
He was a user of intoxicants, but the lower court was unable to find that the use of such intoxicants on his part contributed to the marital troubles of the parties, despite the testimony of the libelant that it contributed to her nervous condition. The court also found that at some time after the child was born the libelee hit the libelant on the legs, leaving marks.
The lower court stated that the libelant testified that the conduct of the libelee made her nervous, and that she consulted a physician about her condition. However, the court declared that it was unable to find from the 'believable evidence' that the conduct of the libelee caused injury or threatened injury to the physical health of the libelant or that it resulted in her suffering mental distress. The libel was dismissed on the ground that intolerable severity had not been established within the definition of the law.
It is the libelant's contention here that the court erred in not finding intolerable severity because of mental cruelty, and also was in error in not finding intolerable severity because of physical cruelty in the findings of fact.
We are presented with the same problem on both of libelant's contentions before us. No affirmative findings of actual or threatened impairment to either the physical or mental health of the libelant by reason of the misconduct of the libelee have been made by the lower court. An affirmative finding on either or both of these questions is essential to warrant the granting of a decree of divorce on the ground of intolerable severity. Only when the facts and circumstances shown by the record before us are so decisive of actual or threatened danger to the libelant's health that there can be no difference of opinion that such a result will ensue can we overcome this failure of the trial court to make a determination of this issue favorable to the libelant. Gilbert v. Gilbert, 123 Vt. 200, 202, 185 A.2d 460; Mathewson v. Mathewson, 81 Vt. 173, 182, 69 A. 646, 18 L.R.A.,N.S., 300.
In our consideration of the facts and circumstances before us we cannot invade the province of the trial court to whom is given the sole...
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