Davidson v. Davidson, 282.
| Decision Date | 02 January 1940 |
| Docket Number | No. 282.,282. |
| Citation | 10 A.2d 197 |
| Parties | DAVIDSON v. DAVIDSON. |
| Court | Vermont Supreme Court |
Exceptions from Caledonia County Court; Samuel H. Blackmer, Judge.
Action for divorce by Clyde R. Davidson against Winona C. Davidson. Judgment dismissing the libel and awarding libelee reasonable costs in excess of suit money paid her by libelant, and libelant brings exceptions.
Affirmed in part, and reversed in part.
Argued before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.
Conant & Parker, of St. Johnsbury, for libellant.
Arthur L. Graves and William S. Burrage, Jr., both of St. Johnsbury, for libellee.
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 libelee her reasonable costs in excess of $50 suit money theretofore paid by the libelant to the libelee. Libelant comes to this court relying only on exceptions to the judgment order. The libelee 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 4 o'clock in the morning of the last named date. On July 11, 1938 the libelant had informed the libelee 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 libelant or the libelee would have to leave the home. In the evening of July 12th, no arrangement of this matter having been made, the libelant left the house which he and his wife had theretofore occupied and he did not thereafter live with her.
The conduct of the libelee 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 libelee engaged in and persisted in a course of conduct which annoyed and bothered the libelant and caused him mental, emotional and nervous distress and grief. There was no finding of any act by the libelee in the nature of intolerable severity subsequent to the last act of marital intercourse above referred to.
The questions raised by the libelant's exceptions to the judgment order dismissing the libel may be answered by determining whether the libelant's action is barred by condonation of the acts of the libelee 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 libelee were condoned by the libelant 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 libelee'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 libelant of libelee'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 libelant, 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 libelant to the libelee 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. 83, 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 12th 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 libelant and libelee. The initiative came from the libelee and the matter was actively pursued by her until the libelant, 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 both the libelant and the libelee.
It is well established in Vermont that intolerable severity, like other causes for divorce, is condoned by and the necessary promise of kindly treatment is inferred from uninterrupted or subsequent voluntary marital cohabitation. Adams v. Adams, 102 Vt. 318, 323, 148 A. 287; Marshall v. Marshall, 65 Vt. 238, 240, 26 A. 900; Souther v. Souther, 103 Vt. 48, 52, 151 A. 504; Langdon v. Langdon, 25 Vt. 678, 679, 60 Am.Dec. 296.
The libelant contends that there could be no condonation as a matter of law in this case because the intolerable severity which was here found consisted of a large number of acts which formed a persistent course of conduct. But it is significant that the final act of intimacy occurred later than any acts constituting intolerable severity, and after the libelant had formed and announced the intention of separating from the libelee on the following day if she did not make the choice he had requested. For this reason many of the cases cited by the libelant from other jurisdictions are not in point. The libelant then had full knowledge of all the acts of...
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