Fischer v. Fischer

Citation92 Idaho 379,443 P.2d 463
Decision Date01 July 1968
Docket NumberNo. 10053,10053
PartiesLouise FISCHER, Plaintiff-Appellant, v. Bernard W. C. FISCHER, Defendant-Respondent.
CourtUnited States State Supreme Court of Idaho

William J. Dee, Grangeville, for appellant.

W. C. MacGregor, Jr., Grangeville, for appellee.

SPEAR, Justice.

Appellant filed suit against her husband asking for a divorce on the grounds of extreme cruelty. The parties were married in June, 1947, and six children have been born as the issue of this marriage. At the time this action was commenced in May, 1966, the children's ages ranged from sixteen years to five years.

Appellant couched her complaint in the usual allegations of extreme cruelty on the part of respondent resulting in the infliction upon her of grievous mental suffering and bodily injury. More specifically appellant alleged a cruel and abusive course of conduct by respondent which has become progressively worse during the course of the marriage thereby deteriorating any legitimate objects of the marriage. She claimed the use of vile language and obscene name-calling, temper tantrums, abusive threats and actual physical abuse by the respondent-husband. Additionally she alleged that respondent had treated her like a chattel, refusing her money even for her ordinary clothing and other usual expenses. All of this, appellant alleged, has caused her great mental anguish and has impaired her health.

It will be noted that appellant did not specifically pray for separate maintenance in her complaint-only that the bonds of matrimony be dissolved-but this was raised during the course of the trial and after the divorce was denied and on appeal it is her contention that the evidence was more than sufficient to justify the granting of a decree of separate maintenance. She also prayed that she be given sole and exclusive custody of all the minor children, that respondent be required to pay necessary support and maintenance for each child, and that she be awarded the entire community property.

Respondent made no cross-complaint, but filed only an answer denying cruelty on his part to appellant and alleging he did not believe he had treated her cruelly or inhumanly and denied he had inflicted upon her grievous mental suffering or bodily injury. He further alleged he was very much in love with his wife, that he was very fond of his children and loved them deeply; that while he had spoken to appellant in a loud and angry voice, he had never threatened her with violence nor struck her; that he had worked hard and long to provide a home for his wife and family; that such efforts on his part may have made him short tempered and difficult to get along with, but on the other hand the necessity of caring for six small children had been trying and aggravating to appellantwife, making her nervous and upset; that the difficultes of the parties in this regard were no different nor more serious than those of most married couples who have been married in excess of twenty years, who were existing upon a limited income and who had to struggle to provide for themselves and their children; that the children dearly love him (their father), and that it would be against their best interests to have them live separate and apart from either their mother or father. He further alleged that he deeply loved his wife, that he did not feel she had an adequate cause for divorce, and that he felt the parties could reconcile their differences, live together with their children in a normal, happy married state, and prayed the court to deny and dismiss appellant's divorce action.

Trial of this cause was held on the 28th day of September, 1966, but on the trial court's own motion and order it was re-opened for additional evidence taken on December 16, 1966; and subsequently thereto the trial court found that appellant had failed to sustain her allegations of cruelty by a preponderance of the evidence and that she had also failed to prove sufficient grounds for a separate maintenance decree. The court additionally found that on some occasions over many years past the respondent upon returning home, while tired or aggravated after working hard on his regular job as a mail carrier for the Postal Department in Grangeville, or after completing his night work at the grocery store, did use profanity in the presence of appellant and the children; and that respondent, after many years of merriage, tended to take appellant for granted and that up until the spring of 1966 appellant accepted these occasional epithets as part of her marriage to respondent. The court then concluded that these acts did not amount to extreme cruelty, but if so, appellant's cause was not brought within a reasonable time after commencement of the use of such language toward her by respondent and so had to be denied under I.C. § 32-611(4).

As is usual in contested divorce actions, the evidence, except as to the date of marriage, the length of residence in the State of Idaho, the names and ages of the minor children of the parties, and the community property of the parties, is highly conflicting and contradictory. To set forth the evidence adduced by, and on behalf of, appellant, concerning the alleged misconduct on the part of respondent which caused appellant grievous mental suffering and bodily injury, and the contradictory evidence adduced by, and on behalf of, respondent particularly that concerning the alleged provocation on the part of appellant, would serve no useful purpose other than to provide interesting reading material for anyone who might in the future have occasion to peruse this opinion. On the other hand, it could well prove most embarrassing to either or both of the parties of this action, and certainly to their children, in the future.

We therefore decline the opportunity to specifically detail this evidence. Suffice it to state that the evidence, when taken as a whole, is more than ample to sustain and support the findings of fact of the trial court. The time-honored principle to be applied in these circumstances is that a determination of the issue of whether or not a respondent's conduct constituted extreme cruelty is a question primarily within the fact-finding function of the trial court; and such findings, if supported by substantial, competent, though conflicting, evidence, will not be disturbed by this court on appeal. Parks v. Parks, 91 Idaho 420, 422 P.2d 618 (1967); Clayton v. Clayton, 81 Idaho 416, 345 P.2d 719 (1959): De Cloedt v. De Cloedt, 24 Idaho 277, 133 P. 664 (1913).

In another assignment of error appellant contends the trial court erred in finding that appellant had not brought her action within a reasonable time after the commencement of the use of vile language toward her. It is unnecessary for us to discuss or rule upon this particular assignment, because of the preceding portion of this opinion. Where a judgment of the trial court is based upon alternate grounds, if the judgment can be affirmed on one of the grounds the fact that the alternative ground may have been in error is of no consequence and may be disregarded. To state this principle in another manner, this court must uphold the finding and judgment of the trial court if it is capable of being upheld on any theory. Berry v. Koehler, 86 Idaho 225, 384 P.2d 484 (1963). See Cassia Creek Reservoir Co. v. Harper, 91 Idaho 488, 426 P.2d 209 (1967).

One other assignment of error by appellant requires attention. She contends the trial court erred when it denied the divorce but failed to award her separate maintenance. It must first be noted that appellant did not allege any cause of action for separate maintenance, nor did she pray for a decree of separate maintenance in her complaint. Additionally, the trial court found upon competent, and substantial, though conflicting, evidence that she had failed in her burden of proof of any grounds entitling her to a decree of separate maintenance. Such finding will not be set aside by this court on appeal. Huppert v. Wolford, 91 Idaho 249, 420 P.2d 11 (1966).

However, in the argument contained in appellant's brief, and also in the oral argument presented by her counsel at the hearing on the appeal, it is stated that the parties have failed to reconcile during the two-year interim between the judgment of the court and the hearing on appeal, and therefore this court is urged, on the basis of that alleged fact, to enter a decree of separate maintenance. On any appeal, this court is prohibited from basing its decision on any facts or circumstances not before the trial judge at the time of his decision and not contained in the record of the cause before this court. Whether or not these parties have or have not reconciled during the interim period is not of record, was not presented to the trial court, and cannot be relied upon by this court in determining the issues on this appeal. As this court stated in Steinour v. Oakley State Bank, 45 Idaho 472, 262 P. 1052 (1928):

'* * * The cause comes to us on the record made; and, to determine the correctness or incorrectness of the trial court's decree, we can consider nothing but what was before the court at the time. * * *' (at p. 483, 262 P. at p. 1056).

This principle is followed in Eldridge v. Payette-Boise W. U. Ass'n, 50 Idaho 347, 296 P. 1022 (1931). As stated in my dissenting opinion in Reed v. Green, 90 Idaho 526 at 536, 414 P.2d 445 (1966):

'Another principle long adhered to by this court is that the trial judge is the arbiter of conflicting evidence, and his determination of the weight, credibility, inference and implications thereof is not to be supplanted by this court's impressions or conclusions from the written record. (citations omitted)

'These principles are most aptly expressed by Justice Givens in Speaking for a unanimous court in Conley v. Amalgamated Sugar Co., 74 Idaho 416, 263 P.2d 705, wherein he stated:

"After the court has found, the criteria are not what other or different findings the...

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