Foster v. Foster
| Decision Date | 07 March 1923 |
| Docket Number | 11,528 |
| Citation | 138 N.E. 360,79 Ind.App. 345 |
| Parties | FOSTER v. FOSTER |
| Court | Indiana Appellate Court |
From Marion Superior Court (A13,973); Theophilus J. Moll, Judge.
Action by Earl Foster against Bertha Foster. From a judgment for defendant, the plaintiff appeals.
Affirmed.
Holmes & McCallister, for appellant.
This was an action by the appellant against the appellee for divorce. There was no appearance by the appellee and she was defaulted. The prosecuting attorney, as was his duty appeared in the case and resisted the granting of the decree. There was a trial, and, after hearing the evidence offered by and on behalf of the appellant, a divorce was denied. Appellant's motion for a new trial was overruled and this action of the court is assigned as error.
No brief on behalf of the appellee has been filed in this court but, as has been many times said, the state has an interest in these matters on grounds of public policy; the home is the real foundation of society, of government, and the severance of the marriage relation, by divorce, has a direct influence upon public morals. For these reasons courts are very careful not to grant divorces unless the case made comes clearly within the statute. Our statute (§ 1067 Burns 1914 § 1032 R. S. 1881) has emphasized this matter by providing, "Divorces may be decreed upon the application of the injured party, for the following causes and no other."
The ground upon which the appellant sought a divorce was the alleged "cruel and inhuman treatment" of the appellant by the appellee. The specific conduct upon which the appellant relies, as being or constituting such cruel and inhuman treatment, being alleged statements by the appellee that, "that she did not love him;" "that she would not have children by him," and that she refused to occupy the same bed and have sexual relation with him.
The courts have not attempted to frame an exact and all-inclusive definition of "extreme and repeated cruelty," but generally content themselves with determining whether the facts in the particular case in question constitute such cruelty or not. 9 R. C. L. 335, and cases there cited. In the same text it is laid down as the modern rule, that whether the offending spouse has been guilty of legal cruelty is a pure question of fact, to be determined from all the circumstances in the case.
Our Supreme Court in the case of Small v. Small (1877), 57 Ind. 568, quotes I Bishop, Marriage and Divorce § 717, as follows:--"'Cruelty, therefore, is such conduct in one of the married parties as endangers, either apparently or in fact, the physical safety or health of the other, to a degree rendering it physically or mentally impracticable for the endangered party to discharge properly the duties imposed by the marriage.'"
The appellant seems to plant his case upon the proposition that the refusal by the wife to have sexual relations with him and to have children by him, was in and of itself an act of cruelty within our statute, such as entitles him to a divorce. It has been held in Michigan and Washington, under the statutes of those states, that such conduct on the part of the wife, if without good excuse, does entitle the husband to a divorce, but, under statutes similar to our own, the great weight of authority is the other way; such conduct has been expressly held not to be such cruel treatment as to authorize the granting of a divorce. Pinnebad v. Pinnebad (1910), 134 Ga. 496, 68 S.E. 73; Stewart v. Stewart (1887), 78 Me. 548, 7 A. 473, 7 A. 473, 57 Am. Rep. 822; Cowles v. Cowles (1873), 112 Mass. 298; Burton v. Burton (1893), 52 N.J. Eq. 215, 27 A. 825; Lohmuller v. Lohmuller (1911), (Tex.) 135 S.W. 751; Wills v. Wills (1914), 74 W.Va. 709, 82 S.E. 1092, L.R.A. 1915B 770; Schoessow v. Schoessow (1892), 83 Wis. 553, 53 N.W. 856; Severns v. Severns (1903), 107 Ill.App. 141.
In the case at bar we note that the appellant had charged in his complaint that the alleged wrongful conduct of the appellee "caused him great distress of mind," yet, in his testimony, as set forth by counsel in the brief filed herein he is entirely silent upon...
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