Davidson v. Davidson
| Decision Date | 02 January 1940 |
| Citation | 10 A.2d 197,111 Vt. 68 |
| Parties | CLYDE R. DAVIDSON v. WINONA C. DAVIDSON |
| Court | Vermont Supreme Court |
November Term, 1939.
Divorce Condonation.---1. Elements of Condonation.---2. Condonation not Inferred for Family's Sake.---3. Presumption no Fraud in Condonation.---4. Voluntary Act Excludes Inference of Duress.---5. Condonation Inferred from Cohabitation.---6. Intimacy as Condonation even if Before Separation.---7. Intolerable Severity not Continuous.---8. Intercourse is Condonation even with Threats.---9. Law Presumes Against Immorality.---10. Findings Conclusive if Exceptions Thereto Not Briefed.---11. Condonation as Matter of Law by Intercourse after Acts of Intolerable Severity.---12. Costs Allowed Only by Statute.---13. "Reasonable Costs" not Allowable in Divorce Action.---14. Suit Money, P. L 3142.---15. Clerk Can not Determine Suit Money.
1. Condonation is always conditional and is based upon the promise, expressed or implied, that the forgiving party shall in the future be, in all respects, treated kindly and restored to conjugal rights.
2. Condonation can not be inferred or implied as a matter of law merely from a desire to keep the home together for the benefit of the family and especially the children.
3. It will be presumed that there was no fraud in the procurement of condonation.
4. That an act of condonation was voluntary on the part of both parties excludes the inference of duress or compulsion of any kind.
5. Intolerable severity is condoned by and the necessary promise of kindly treatment is inferred from uninterrupted or subsequent voluntary marital cohabitation.
6. A libellant can not overlook or excuse an act of marital intimacy in which he voluntarily engages during an ultimatum to the libellee to alter the conditions accompanying previous acts of intolerable severity.
7. A series of acts of intolerable severity even though occurring at frequent intervals can not be said to be continuous in the sense in which infection with disease is continuous.
8. Sexual intercourse voluntarily engaged in after the libellant has warned the libellee that conditions must be changed and after a series of acts of intolerable severity constitutes condonation.
9. The law favors the marriage relation and its continuance and presumes against vice and immorality and in favor of marriage.
10. Findings of fact stand as to a party who briefs no exceptions thereto.
11. Condonation is to be inferred as a matter of law from an act of intercourse following a series of acts which constituted intolerable severity.
12. It is only by force of our statutes that costs are ever taxed and allowed.
13. No provision of the Vermont statutes permits the allowance of "reasonable costs" to one of the parties to a divorce action.
14. P L. 3142 allows a court or superior judge on notice to make orders in regard to temporary alimony and funds to maintain litigation during the pendency of a libel.
15. An order in a divorce action leaving to the clerk the determination of an allowance for suit money is outside the jurisdiction of the court and should be eliminated from a judgment.
LIBEL FOR DIVORCE on ground of intolerable severity. Heard at December Term, 1938, Caledonia County Court, Blackmer, J presiding. Libel dismissed, and order for libellee to recover reasonable costs in excess of suit money theretofore paid. Both parties took exceptions. See another phase of this case, page 24, ante, 9 A.2d 114.
Judgment that the libel be and is dismissed, affirmed. Judgment that the libellee recover from the libellant her reasonable costs in excess of $ 50.00 suit money heretofore paid said libellee by the said libellant, said costs to be taxed and computed by the clerk of the court, reversed.
Conant & Parker for libellant.
Arthur L. Graves and Wm. S. Burrage for libellee.
Present: MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.
This is an action for divorce which is based upon the sole ground of alleged intolerable severity. Following the trial findings of fact were filed by the court and thereafter judgment was rendered dismissing the libel and also awarding to the libellee her reasonable costs in excess of fifty dollars suit money theretofore paid by the libellant to the libellee. Libellant comes to this court relying only on exceptions to the judgment order. The libellee also filed a bill of exceptions and comes here relying on certain exceptions to the findings of fact.
The findings disclose that the parties lived together as husband and wife from the time of their marriage in 1927 until July 12, 1938, and during that entire period had regular sexual relations, the last intercourse taking place at about four o'clock in the morning of the last named date. On July 11, 1938, the libellant had informed the libellee that she would have to choose him instead of her family, and that if she did not do so within twenty-four hours either the libellant or the libellee would have to leave the home. In the evening of July 12th, no arrangement of this matter having been made, the libellant left the house which he and his wife had theretofore occupied and he did not thereafter live with her.
The conduct of the libellee which the court finds constituted intolerable severity was comprised of a large number of acts between 1928 and July, 1938. It is found that the libellee engaged in and persisted in a course of conduct which annoyed and bothered the libellant and caused him mental, emotional and nervous distress and grief. There was no finding of any act by the libellee in the nature of intolerable severity subsequent to the last act of marital intercourse above referred to.
The questions raised by the libellant's exceptions to the judgment order dismissing the libel may be answered by determining whether the libellant's action is barred by condonation of the acts of the libellee which it is found constituted intolerable severity. The court found that prior to the fall of 1936 the acts of intolerable severity on the part of the libellee were condoned by the libellant through the continuance of marital cohabitation. But condonation is always conditional and has for its very basis and consideration the promise, express or implied, that the forgiving party shall, in the future, be, in all respects, treated kindly and restored to conjugal rights. Adams v. Adams, 102 Vt. 318, 323, 148 A. 287; Langdon v. Langdon, 25 Vt. 678, 679, 60 Am. Dec. 296. The last acts in the course of conduct which the court found constituted intolerable severity occurred early in July, 1938. That the libellee's acts at that time violated the promise given with any prior condonation and were sufficient to cancel the same cannot be doubted. It follows that we have for consideration only such condonation as may have occurred subsequent to those acts.
From the fall of 1936 to July 12, 1938, the court found no forgiveness or condonation by the libellant of libellee's conduct, except such as is to be inferred or implied as a matter of law from a desire to keep the home together for the benefit of the family and especially the children, and except such as is to be inferred or implied as a matter of law from the regular sexual relations above referred to, terminating on the morning of July 12, 1938.
It is not made to appear that the libellant, subsequent to early July, 1938, was actuated by any desire to keep the home together for the benefit of the family and children. In fact the absence of such a desire might be inferred from the ultimatum given by the libellant to the libellee on July 11th. However that may be, we think that condonation cannot be inferred or implied as a matter of law merely from a desire to keep the home together for the benefit of the family and especially the children. Greenwell v. Greenwell, (R. I.) 98 A. 53, 54; Wilson v. Wilson, 16 R.I. 122, 13 A. 102, 104.
The findings do not definitely indicate that more than one act of marital intimacy took place between the parties between "early in July" and the morning of July 12th. We therefore confine our inquiry to the question whether from the act of intercourse on the morning of July 12 condonation is to be inferred or implied as a matter of law. The finding with respect to this act is that it was voluntary on the part of both libellant and libellee. The initiative came from the libellee and the matter was actively pursued by her until the libellant, though mentally reluctant, complied. Fraud in procuring the claimed condonation cannot be inferred from this finding, and the court does not elsewhere find that there was such fraud. In the absence of such a finding it will be presumed that there was no fraud in such procurement. Marshall v. Marshall, 65 Vt. 238, 240, 26 A. 900. Duress or compulsion of any kind is excluded by the finding that the act was voluntary on the part of...
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