Donaldson v. Donaldson

• Decision Date: 31 December 1917
• Citation: 170 P. 94,31 Idaho 180
• Parties: ROSA B. DONALDSON, Respondent, v. JOHN W. DONALDSON, Appellant
• Court: Idaho Supreme Court

170 P. 94

31 Idaho 180

ROSA B. DONALDSON, Respondent, v. JOHN W. DONALDSON, Appellant

Supreme Court of Idaho

December 31, 1917

DIVORCE-EXTREME CRUELTY-CORROBORATING EVIDENCE-FINDINGS OF FACT-CHILDREN DISPOSITION OF-PROPERTY, DISPOSITION OF-ATTORNEY'S FEES.

1. Findings of fact should be liberally construed in support of the judgment.

2. In an action for divorce, the particular acts of cruelty complained of are not of themselves the determining factor but the question as to whether the acts of cruelty cause grievous mental suffering on the part of the innocent party is the determining question under the statute.

3. In the absence of objection made in the trial court that the facts are insufficient, in the construction of findings to support the judgment the court will consider as found every reasonable inference of fact which may be drawn from the facts found.

4. No definite rule as to the degree of corroboration required in an action for divorce can be laid down, but each case must be decided according to its own facts and circumstances.

5. In an action for divorce, all facts shown by the evidence independently of the statements, admissions or testimony of the parties, which tend to show the treatment, conduct and attitude of the party complained of toward the other party to the marriage, are properly considered by the trial court, and it is to determine whether such facts and circumstances corroborate the testimony of the plaintiff in the action.

6. The question as to the disposition of children and allowance of alimony in divorce actions is in the first instance committed to the discretion of the court, and unless such discretion is abused, the judgment will not be disturbed.

7. The matter of the disposition of community property, where a divorce is granted upon the grounds of extreme cruelty, is a matter in the first instance committed to the discretion of the trial court, and unless such discretion is abused the judgment will not be disturbed.

8. The right of the trial court to allow attorney's fees is derived from the statute, but by the terms of the statute can only be put into operation when it is necessary to enable the wife to prosecute or defend the action.

9. The allowance of attorney's fees looks to the future and not to the past.

[As to cruelty as ground for divorce, see notes in 29 Am.Dec. 674; 73 Am.Dec. 619; 40 Am.Rep. 463; 51 Am.Rep. 736; 65 Am.St. 69]

APPEAL from the District Court of the Second Judicial District, for Lewis County. Hon. Edgar C. Steele, Judge.

Action for divorce. Judgment for plaintiff. Modified.

Judgment of the trial court affirmed. Costs awarded to the respondent.

Allen A. Holsclaw and Geo. W. Tannahill, for Appellant.

The evidence in this action does not show sufficient grounds to warrant the court in granting the respondent a divorce. (See Divorce, Cent. Dig., sec. 64; Barker v. Barker, 25 Okla. 48, 105 P. 347, 26 L. R. A., N. S., 909.)

The evidence on the material points fails of corroboration, and the court should not have granted the divorce or awarded the care and custody of the minor children to the respondent. (Sec. 2661, Rev. Codes; Strode v. Strode, 6 Idaho 67, 96 Am. St. 249, 52 P. 161; Rowe v. Rowe, 84 Kan. 696, 115 P. 553.)

Perry W. Mitchell and S. O. Tannahill, for Respondent.

The supreme court will not disturb a finding of the trial court that particular acts constitute grievous mental suffering, unless the evidence in support of such finding is so slight as to indicate a want of ordinary good judgment and an abuse of discretion on the part of the trial court. (Little v. Little, 29 Idaho 292, 158 P. 559; Abbott v. Reedy, 9 Idaho 577, 75 P. 764; Small v. Harrington, 10 Idaho 499, 79 P. 461; Heckman v. Espey, 12 Idaho 755, 88 P. 80; Hufton v. Hufton, 25 Idaho 96, 136 P. 605; Bower v. Moorman, 27 Idaho 162, 147 P. 496; Blair v. Blair, 122 Cal. 57, 54 P. 369; Fleming v. Fleming, 95 Cal. 430, 29 Am. St. 124, 30 P. 566.)

"A decree granting or refusing a divorce on evidence which is conflicting will not be disturbed." (14 Cyc. 735; Edwards v. Edwards, 80 Ala. 97; Blair v. Blair, 122 Cal. 57, 54 P. 369; Fuller v. Fuller, 17 Cal. 605; Johnson v. Johnson, 22 Colo. 20, 55 Am. St. 113, 43 P. 130.)

RICE, J. Morgan, J., concurs. BUDGE, C. J., Concurring in Part and Dissenting in Part.

OPINION

RICE, J.

The respondent, Rosa B. Donaldson, brought this suit to obtain a decree of divorce from appellant upon the ground of extreme cruelty causing grievous mental suffering. A judgment was entered in favor of respondent. The appeal is from the judgment.

Extreme cruelty is defined by sec. 2649, Rev. Codes, as "the infliction of grievous bodily injury or grievous mental suffering upon the other by one party to the marriage." In 9 R. C. L., p. 335, it is said: "It is well recognized that no exact inclusive and exclusive definition of legal cruelty can be given, and the courts have not attempted to do so but generally content themselves with determining whether the facts in the particular case in question constitute cruelty or not. Especially, according to the modern view, is the question whether the defending spouse has been guilty of legal cruelty a pure question of fact to be resolved upon all the circumstances of the case."

In the case of De Cloedt v. De Cloedt, 24 Idaho 277, 133 P. 664, the court said: "Extreme cruelty is a term of relative meaning, and a course of conduct that would inflict grievous mental suffering upon one person might not have that effect upon another. Hence no fixed legal rule for determining its existence in any given case can be laid down. The judge who tries the case and has the parties before him for observation in the light of the evidence is the one to whom the law commits the determination of this question in the first instance, and this court will not disturb a finding that particular acts constitute grievous mental suffering, unless the evidence in support of the finding is so slight as to indicate a want of ordinary good judgment and an abuse of discretion by the trial court."

See, also, Barnes v. Barnes, 95 Cal. 171, 30 P. 298, 16 L. R. A. 660, and Fleming v. Fleming, 95 Cal. 430, 29 Am. St. 124, 30 P. 566.

The finding of the trial court is as follows: "That since said marriage defendant has treated plaintiff in a cruel and inhuman manner, has cursed her and otherwise abused her, and has on divers occasions called plaintiff vile and profane names, and has threatened plaintiff with great bodily harm. That on or about the 1st day of February, 1915, the defendant cursed and swore at plaintiff, called her vile names and applied to her vile epithets. That the defendant has on other occasions been guilty of cruel treatment toward the plaintiff as set out in paragraphs 3 and 4 of the plaintiff's complaint."

The appellant does not specify as error that the court did not find that the misconduct of appellant inflicted grievous mental suffering upon respondent. Nevertheless, in actions of this nature we feel called upon to consider the sufficiency of the finding to support the judgment.

In the case of Fouch v. Bates, 18 Idaho 374, 110 P. 265, it is said to be a well-established rule that a finding should be liberally construed in support of the judgment. If extreme cruelty is a relative term, as held in the cases of De Cloedt v. De Cloedt, supra, and Fleming v. Fleming, supra, and indeed as is the general consensus of judicial opinion, the facts found by the judge in this case might or might not result in grievous mental suffering to the injured spouse. The particular acts of cruelty complained of are not of themselves the determining factor, but the question as to whether the acts of cruelty caused grievous mental suffering on the part of the innocent party is the determining question under the statute. In the head-notes to the case of Mosher v. Mosher, 16 N.D. 269, 125 Am. St. 654, 113 N.W. 99, 12 L. R. A., N. S., 820, it is said: "A continuous course of fault-finding, threats, and other acts, intended to aggravate and annoy the other party to a marriage, though each act is trifling in itself, may cause such a degree of mental suffering as to constitute a ground for divorce on the charge of extreme cruelty."

In the absence of objection made in the trial court that the findings are insufficient, in the construction of findings to support the judgment the court will consider as found every reasonable inference of fact which may be drawn from the facts found. Thus, in the case of Kelly v. Kelly, 18 Nev. 49, 51 Am. Rep. 732, 1 P. 194, the appeal was taken from the judgment-roll alone, and there was neither findings of the court nor any statement of the evidence before the supreme court. The complaint averred that "by reason of the acts of the defendant herein before set forth, the life of the plaintiff has been rendered unendurable and miserable, so that he has been forced to cease cohabiting and living with defendant." There was no averment that he was in danger of life or limb, or health, or in the reasonable apprehension of such danger. But the court said: "If the conduct of which the defendant confesses to have been guilty, and which she admits drove the plaintiff from his home, could have resulted in injury to health, then the judgment must be allowed to stand."

In order to support the judgment the inference may be drawn fairly from the findings that the acts found by the trial court to have been committed by the appellant caused the respondent to undergo grievous mental suffering.

It is contended that the plaintiff's testimony is not corroborated to a sufficient degree to justify the granting of the decree. Rev. Codes, sec. 2661, provides that "no divorce can be granted upon the uncorroborated statement,...