Fish v. Fish

• Decision Date: 25 August 1927
• Citation: 138 A. 477
• Parties: FISH v. FISH.
• Court: Maine Supreme Court

138 A. 477

FISH

v. FISH.

Supreme Judicial Court of Maine.

Aug. 25, 1927.

Exceptions from Supreme Judicial Court, Androscoggin County, at Law.

Suit by Ethel M. Fish against Walter Fish, for a divorce. Judgment dismissing the libel, and libelant brings exceptions. Exceptions sustained.

Argued before PHILBROOK, DUNN, DEASY, BARNES, and BASSETT, JJ.

Frank T. Powers, of Lewiston, for libelant.

PHILBROOK, J. This is a libel wherein the libelant seeks divorce on the ground of gross and confirmed habits of intoxication from the use of intoxicating liguors, opium, or other drugs, this being the fifth cause for divorce prescribed by our Legislature.

The decree in the court below is in the following language:

"The court finds as facts that, for a period during the marriage of the parties and prior and up to 1920, the libelee's habits as to the use of intoxicating liquors became gross and confirmed; that July ——, 1920, he was committed to the State Hospital at Augusta, and has since remained there continuously to the present. The court does not find that the offense has been condoned. The court holds that, as grounds for divorce, gross and confirmed habits of intoxication must continue up to the time of filing the libel, the libel is dismissed."

The libelant seasonably presented a bill of exceptions, which was allowed, and the case is before us upon that bill.

In view of the terms of the decree dismissing the libel, it is contended that our discussion should be strictly confined to the issue as therein stated, viz., must gross and confirmed habits of intoxication continue up to the time of filing the libel in order to entitle the libelant to obtain a decree for divorce on that ground?

But since, in the instant case, we are for the first time required to construe this provision of our statute, we are of opinion that we should go further. Gross and confirmed habits of intoxication, at some time during marital life, having been proved to exist, as in this case, must the libelant, in all cases, by affirmative evidence, prove that those habits existed at the time of filing the libel, or may any assumption or presumption come to the assistance of the libelant in the absence of contradictory evidence offered by the libelee in a contested case?

In the case at bar, the bill of exceptions shows that service of the libel was properly made upon the libelee and also upon his guardian appointed by the probate court, which guardian was present in court when the libel was heard, but no opposition to granting the divorce was made.

The statutes of many states, where this cause for divorce is granted by their Legislature, have stated it as "habitual drunkenness" or "habitual intemperance," e. g., Connecticut, Florida, Idaho, and Louisiana; or "habitual intoxication," e. g., Georgia. So far as we have discovered, Massachusetts is the only state which uses the same phraseology as that used in Maine, viz., "gross and confirmed habits of intoxication."

In Burt v. Burt, 168 Mass. 204, 46 N. E. 622, decided in 1897, the husband filed a libel alleging that his wife was guilty of "gross and confirmed drunkenness caused by the voluntary and excessive use of opium or other drugs." At the same time there was heard an appeal by the husband from a decree of the probate court on the petition of the wife for separate support and maintenance, and also a cross-libel of the wife charging adultery, cruel and abusive treatment, and failure to provide suitable maintenance. It may be fairly inferred that the contest was vigorous and that each side presented evidence in behalf and in defense of his or her cause. In the court below the sitting justice ordered a decree nisi for the husband, dismissed the wife's libel and her petition for separate support. The wife alleged exceptions.

After discussing certain questions relating to admission of testimony, the court stated that the principal question was whether the judge in the court below was justified in entering a decree nisi on his findings of fact, which findings were as follows:

"At the time of her marriage the libelee used morphine to some extent, but the use was not gross or confirmed. The libelant knew this before the marriage, as he had prescribed it for her to relieve severe headaches. After her marriage her use of the drug increased, until the habit became confirmed, and to such an extent as to cause her to lie in bed at times until 4 o'clock in the afternoon. It also caused her to act in a stupid, irrational way, and this for long periods of time. After she left her husband, her use of morphine became less; and from that time up to the filing of this libel, nearly 15 months, the gross character of its use became modified, or ceased; but she did not entirely abandon its use, and was somewhat under its influence."

In reversing the finding of the lower court, the appellate court said:

"The decree which was entered, in view of the finding of the libelee's use of the drug after she left her husband, seems to be based upon this construction of the statute, namely, that the libelant would be entitled to a decree if, at any time after the statute was in force, the libelee was in the condition set forth in the statute, although the gross character of the use of the drug had become modified or had ceased when the libel was brought. We are of opinion that this view is erroneous. 'Gross and confirmed drunkenness' is a condition, just as what is called in the Pub. Sts. c. 146, § 1, 'gross and confirmed habits of intoxication' is a condition. Substantially the same rules apply to both descriptions. Drunkenness cannot fairly be said to be gross and confirmed if, at the time the libel is filed, the character of the use of the intoxicant or drug has ceased for some length of time, so that it may fairly be found that the condition required by the statute no longer exists. The statute does not authorize a divorce on account of the use of a drug, but only for its abuse. The use must be excessive, and must produce a certain result; and this result must exist when the libel is filed."

The court, in the opinion from which we have just been quoting, frankly says that it finds no authorities precisely in point,

In McCraw v. McCraw, 171 Mass. 146, 50 N. E....