Davis v. Davis, 145-69

• Decision Date: 02 June 1970
• Docket Number: No. 145-69,145-69
• Citation: 128 Vt. 495,266 A.2d 466
• Court: Vermont Supreme Court
• Parties: Sara Jane DAVIS v. Arthur Gerald DAVIS.

Page 466

266 A.2d 466

128 Vt. 495

Sara Jane DAVIS v. Arthur Gerald DAVIS.

No. 145-69.

Supreme Court of Vermont.

June 2, 1970.

Kinney & Carbine, Rutland, for plaintiff.

James W. Wright, Woodstock, for defendant.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

SHANGRAW, Justice.

This is an action of divorce brought on the grounds of intolerable severity and nonsupport. The case was heard on October 7, 1969 and was not contested. Findings of fact were waived. This was followed by an order of the court dated October 9, 1969 by which it was determined that '* * * none of the alleged statutory grounds for divorce were proven by credible evidence.' The libel for divorce was dismissed with prejudice. No evidence was presented on the issue of nonsupport.

By letter of October 17, 1969 addressed to the presiding judge, plaintiff's attorney requested that the order be struck and the case be reopened for additional evidence on the issue of intolerable severity. No reason was given why the additional evidence was not presented at the trial, nor its amount and character revealed. The request to reopen was denied. This ruling was too plainly within the court's discretion to require further comment.

Plaintiff has appealed to this Court for a review of the order dismissing the libel.

The parties were married on October 26, 1968 and lived together until about June 6, 1969. Plaintiff was 21 years of age at time of the trial.

In support of her claim of intolerable severity, the transcript reveals that she testified her husband was immature and lacked a sense of responsibility; would not keep himself clean; always took her paycheck; permitted his insurance to go to his parents as beneficiaries; desired to be the center of attraction and wanted to break up plaintiff's family association. The parties lived in a house owned by plaintiff's mother. Her husband would not pay any rent. On one occasion, about Christmas time, her husband insisted that she help in pushing his automobile out of the unshoveled drive-way. This resulted in a quarrel between the parties. Following this incident plaintiff became ill. The foregoing evidence was in part confirmed by the testimony of plaintiff's mother.

Plaintiff testified that she became nervous and lost ten to fifteen pounds in weight. She was employed by the University of Vermont Extension Service at Woodstock, Vermont. Her immediate superior testified that plaintiff became nervous, distraught, and appeared upset and unhappy. Since the separation her condition has improved.

Plaintiff contends that the trial court failed to follow the evidence in the case, and that the record supports her claim of intolerable severity on the part of her husband.

As stated in Whitehead v. Whitehead, 84 Vt. 321, 322, 79 A. 516, 517, 'Intolerable severity may be established in divorce proceedings by proof of any line of misconduct persisted in by the offending party to such an extent as to cause or threaten injury to the life, limb or health of the other; and it is not necessary that such injury, actual or threatened, should be the direct result of such misconduct, but that it is sufficient if it is produced by grief, worry or mental distress occasioned thereby.' This view was later confirmed in Pacquin v. Pacquin, 125 Vt. 243, 245, 214 A.2d 90.

In Gilbert v. Gilbert, 123 Vt. 200, 202, 185 A.2d 460, 461 this Court held, 'To warrant a decree of divorce on the strength of mental suffering, there must be an affirmative finding of actual or threatened impairment of health. To overcome the failure of the trial court to make a...