Dorsey v. Dorsey

• Decision Date: 16 April 1918
• Docket Number: 3169
• Citation: 52 Utah 73,172 P. 722
• Court: Utah Supreme Court
• Parties: DORSEY v. DORSEY

172 P. 722

52 Utah 73

DORSEY v. DORSEY

No. 3169

Supreme Court of Utah

April 16, 1918

Appeal from District Court of Weber County, Second District; Hon. A W. Agee, Judge.

Suit by Russel B. Dorsey against Florence v. Dorsey for divorce.

Judgment for plaintiff. Defendant appeals.

REVERSED and remanded, with directions.

Chez &amp Stine for appellant.

Howell & Wright for respondent.

FRICK C. J. McCARTY, CORFMAN, THURMAN and GIDEON, JJ., concur.

OPINION

FRICK, C. J.

The plaintiff commenced this action in the district court of Weber County to obtain a divorce from the defendant upon the ground of extreme cruelty. The acts of cruelty are set forth at great length in the complaint, and are largely based on defendant's conduct with other men, and especially with one Robert H. Gray, in going to dances and other places of amusement with him against the wish and without the consent of the plaintiff. The complaint was filed on the 10th day of February, 1917, and on the 19th, within nine days after the same was filed, plaintiff and defendant entered into a stipulation, signed by them personally and by counsel, whereby it was agreed that, in case the court should grant plaintiff a divorce, the defendant shall receive certain household furniture and that she waived all other claims for alimony. It was further stipulated that the defendant should have the care, custody, and control of the minor child, a little girl eleven years of age, the fruit of the marriage between plaintiff and defendant, and that the plaintiff shall pay to the defendant "the sum of fifteen dollars per month for the support, care, maintenance, and education" of said minor child. It seems the child elected to live with her mother, a right she had under our statute. It was therefore stipulated that the plaintiff should have the right to visit said child, and she should have the right to visit him "at all reasonable times." The plaintiff also agreed to pay the defendant twenty-five dollars as attorney's fees.

Upon the foregoing stipulation being filed, the defendant did not answer the complaint and did not further appear in the action. In due time the plaintiff presented his evidence to the court, from which it is made to appear that for a number of years he had been, and at the time of the hearing was, employed in the United States mail train service; that for some time he and the defendant lived at Los Angeles, and thereafter for a time at Oakland, Cal. More than a year immediately preceding the commencement of the action, however, they had lived at Ogden, Utah. During all of the time aforesaid he was employed in the government mail service upon trains, and was away from home much of the time, both day and night. It also was made to appear that the defendant, like most females, was naturally gregarious and was fond of society, and that she and plaintiff, when he was at home, at times attended dances, and at times, when he was away from home, she attended some private and perhaps one or two other dances, but always with plaintiff's knowledge; that is, she informed him that she was going and with whom she was going, except perhaps in one or two instances. It was also shown that during the last few months before the bringing of the action one Robert H. Gray, who was also in the government mail service, and who was working with plaintiff, paid considerable attention to the defendant, and she seemed to become unduly friendly with him. She attended a Knights of Pythias dance with him and also one called the "Telephone Girls" dance. She also came to Salt Lake City from Ogden one night with Gray and a young man and his companion, a young girl, and a Mrs. Stead, in the young man's automobile. The testimony produced by plaintiff, however, showed that the five persons were always together from the time they left Ogden until they again returned there, and that nothing out of the usual transpired. While there is much evidence from which one may readily conclude that the defendant was indiscreet, indeed on one or two occasions very indiscreet, yet there is nothing in the record which justifies a finding that she was guilty of any criminal act. Indeed, the trial court conceded that the evidence was not such as would convict her of criminal conduct. After a careful reading of the record, one becomes impressed with the fact that the defendant was prompted to do some of the things of which she is accused merely to provoke and to defy her husband. One of plaintiff's witnesses, who boarded and lived with plaintiff and the defendant some time before they moved to Ogden, and who came in touch with them while they lived there, testified that he never saw anything indicating any wrongdoing on the part of the defendant.

We can readily understand why, after the stipulation was entered into between plaintiff and defendant, she paid no further attention to the action. As is usual in ex parte hearings one gets merely the views of the complaining party. It is also true, as all lawyers and judges well know, that in a family quarrel the conduct and acts of the spouse that is deemed in fault are unduly, and sometimes without adequate foundation, magnified and distorted. This case is perhaps no exception to that rule. If in this case there had been a vigorous cross-examination of the plaintiff and his witnesses, and if they would have been required to give a strict account of what they knew, and to give the source of their statements, and if such cross-examination had been supplemented by defendant's version of the acts of which she is accused and of her conduct, the conclusions that could legitimately be deduced from the whole evidence might be quite different. That such is the case, we think, is reflected from plaintiff's own conduct. Witnesses were called who testified that he was a man of exemplary moral character, and the court so found. If, therefore, he had believed that the defendant was an immoral woman he would not have stipulated that his only child should remain in her care, custody, and control. The plaintiff evidently believed her to be a fit person to have the care and custody of his only child. Notwithstanding the stipulation, however, and that the evidence respecting the defendant's moral fitness to rear her own child is, to say the least, merely conjectural, and not satisfactory, the court not only refused to follow the stipulation, but made a finding "that said...