Gallant v. Gallant

• Decision Date: 10 September 1970
• Docket Number: No. 124-69,124-69
• Citation: 129 Vt. 16,270 A.2d 593
• Court: Vermont Supreme Court
• Parties: Bernice E. GALLANT v. Charles R. GALLANT.

Page 593

270 A.2d 593

129 Vt. 16

Bernice E. GALLANT v. Charles R. GALLANT.

No. 124-69.

Supreme Court of Vermont.

Sept. 10, 1970.

Joseph C. McNeil, Burlington, for plaintiff.

John A. Burgess, Montpelier, for defendant.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

SMITH, Justice.

This is an appeal taken by the libellee, Charles R. Gallant, from an Order and Decree granting the libellant a decree of divorce on August 30, 1969, by the Chittenden County Court on the grounds of intolerable severity.

The libellee, appellant here, presents two questions for our consideration: 1. Did the appellant's mental condition as a matter of law bar the libellant from obtaining a divorce? 2. That the Court's findings on the issue of condonation are contrary to the evidence and, as a matter of law, insufficient to support the decree.

The parties in the case were married on July 23, 1955, at Cranston, Rhode Island, and lived in that state until April of 1967 when they moved to Williston, Vermont. There have been born of the marriage three children, all of whom are still in their minorities. The libellant brought her bill of divorce in the Chittenden County Court in February, 1968, on the grounds of intolerable severity.

It was the testimony of the libellant that the libellee had struck her repeatedly on several occasions in front of her children, with injuries on at least one of these occasions so severe that she was required to be hospitalized. She testified she lived in constant fear of the libellee because of such physical abuse received from him and threats made by him to her that he would repeat such actions in the future. The libellee admitted the committing of such violence to the libellant, so that the fact that such intolerable severity did occur is not here disputed. The contention of the appellant is that he was suffering from such insanity at the time of such misconduct that it shielded him from responsibility for his actions.

The appellant did not plead his insanity as a defense to the divorce action of the libellant, although he appeared in such action by a guardian ad litem, apparently at his own request and choosing. A plea of insanity must be made by a person indicted or informed against for a criminal offense. 13 VSA Sec. 4803. We note that in our earliest case upon the question of insanity being a bar to an action for divorce, the alleged insanity was apparently pleaded in defense. Nichols v. Nichols, 31 Vt. 328. In any event, we think that insanity as a defense to a divorce action is an affirmative defense as defined in 12 VSA Sec. 1024, and as such should be pleaded in all future divorce proceedings where it is relied upon.

The extensive and complete findings of fact made by the court below devote Findings 18 though 23 to 'Libellee's Mental Condition'.

'18. Libellee's counsel urges upon us the argument that the mental condition of the libellee is and was such as to preclude responsibility on his part for the acts of intolerable severity. We note that this matter was not pleaded, and seems to be inconsistent with his contention that his visitation rights with the children should include a right to have them with him, alone, on trips, in the event a divorce is granted.

19. There can be no question, on all the evidence, and from observing the libellee on the witness stand, that he has now, and has had a psychiatric problem. He had a short voluntary commitment when the parties resided in Rhode Island. And, in Vermont, in early 1968, he spent almost all of the first four months either in the DeGoesbriand Unit or the Waterbury State Hospital as a voluntary patient, although continuing his daytime employment during a large part of this period.

20. His symptoms, during these periods and at other times, have been schizophrenic in nature, characterized by disorganization, agitation, unusual concerns about his sex and work abilities, gross anxieties, and a conviction of persons working against him.

21. He has, however, recognized his own problems to the point of voluntary treatment and committment. And, except for a brief period, he has continued to perform satisfactorily in his rather responsible employment as a senior designer at IBM, even working extensive overtime.

22. We find that, while his mental condition may, at times, have influenced his conduct, it does not account for the persistent and continued nature of his acts of intolerable severity. Nor was it, except for a brief period, such as to prevent him from making rational judgments, realizing what he was doing, and being aware of the consequences of his actions.

23. Apart from any question of pleading, we find that the defense of insanity is not sustained, and that in general the acts of intolerable severity complained of were the responsible acts of the Libellee.'

The weight and sufficiency of evidence is for the trial court, on the issues of both intolerable severity and recrimination. Tucker v. Tucker,127 Vt. 252, 253, 246 A.2d 707.

'It was for the trial court to consider and weigh all this evidence together, having the advantage, which we do not, of observing the witnesses as they testified. Insofar as the evidence was conflicting, all conflicts must be resolved against the excepting party.' Raymond v. Raymond, 120 Vt. 87, 93, 132 A.2d 427, 430.

In the case of Nichols v. Nichols, supra, this Court recognized that insanity was a defense in a divorce action based upon such grounds as intolerable severity and adultery, although this recognition seemed to be based upon 'general insanity', whatever that term may have meant in 1858, before modern psychiatry had made its appearance in American courts. Today, as admitted by the appellant, not every mental disease, of whatever degree, will shield a divorce litigant from responsibility. 24 Am.Jur.2d, Divorce and Separation, Sec. 239.

In Vermont, neither the statutes, nor this Court, has as yet set forth a test of insanity as applied to its being used as a defense for misconduct in divorce actions.

In the case of White v. White (1950), an English case reported in 2 All Eng. 389, 19 A.L.R.2nd 130, the defense of schizophrenia was interposed as a defense in a divorce action for cruelty. The English court reasoned that the mere fact that the acts complained of as cruelty were done by the defendant as a result of a diseased mind did not constitute a defense to the action for divorce on the ground of cruelty if he knew what he was doing and the wrongful character of his acts.

In the instant case it appeared that the libellee was at all times able to transact business and had been regularly employed, even during the periods that he had voluntarily committed himself for psychiatric treatment. Nothing was offered below by the libellee by way of evidence that he did not fully understand and comprehend the wrongs that he had committed. In a case with a similar factual background, the Nebraska court in Anderson v. Anderson (1911) 89 Neb. 570, 131 N.W. 907, Ann.Cas.1912C, 1, stated that it would be a farce to say that such mental condition was such as to excuse him for the treatment which he had accorded his wife.

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