Guinn v. Guinn

• Decision Date: 11 April 1950
• Citation: 217 P.2d 248,188 Or. 554
• Parties: GUINN v. GUINN.
• Court: Oregon Supreme Court

217 P.2d 248

188 Or. 554

GUINN v. GUINN.

Supreme Court of Oregon.

April 11, 1950

Argued March 8, 1950.

Alan F Davis, of Portland, argued the cause and filed a brief for appellant.

Stephen E. Parker, of Portland, argued the cause and filed a brief for respondent.

Before LUSK, C. J and BRAND, BELT, BAILEY and LATOURETTE, JJ.

LUSK, Chief Justice.

The plaintiff obtained a decree awarding her a divorce from her husband custody of their minor child and temporary alimony. The husband has appealed.

Plaintiff alleged in her complaint, as grounds for a divorce, that defendant had treated her 'in a cruel and inhuman manner, making her life miserable, burdensome and unbearable and that some of said acts of cruelty are hereinafter more specifically set forth as follows:

'1. That defendant on numerous occasions has told plaintiff that he no longer loved her.

'2. That defendant on numerous occasions has told plaintiff to leave their home and not to return.

'3. That defendant refuses to coverse with plaintiff for long periods of time.

'4. That defendant refuses to share with plaintiff and social life or activity and discourages any attempt by plaintiff to enjoy the company of friends and acquaintances.

'5. That defendant has been niggardly and parsimonious with his money and by said action has forced plaintiff to work and produce income, even though defendant's earnings were sufficiently large to support the family.

'6. That defendant has struck plaintiff across the face, causing plaintiff to suffer physical injury and great mental pain and anguish.

'7. That defendant deliberately concealed from plaintiff, prior to their marriage, that he had been married on two former occasions.'

The court made no specific findings (as we think should be done in a case of this kind), but in a letter to counsel announcing his decision stated, 'We feel that sufficient of plaintiff's grounds for divorce has been established such as defendant's failure to converse with her, and to join with her in social intercourse in their own home and in the homes of their own friends.' The court also said, 'The inharmony which developed between plaintiff and defendant was more attributable to the discrepancy in age than to any other cause. * * * The defendant lacked the tact and patience which might have overcome the conflicting attitudes and would have made for harmony and a successful marriage.' Other than the foregoing, the court's memorandum found no fault in the defendant.

The parties were married May 9, 1946. He was forty-three; she was twenty-one. A boy was born to them March 27, 1947. On May 28, 1948, the plaintiff left her husband, but after an interval of three days, according to the plaintiff--of one night, according to the defendant--, he persuaded her to return. She left again on November 29, 1948, and on the same day filed this suit.

Until the birth of their son the parties seem to have enjoyed a reasonably happy married life. After that event there was discord, which appears to have been more or less continuous with the exception of a three-week period following their reconciliation in June, 1948. The mere fact that they did not get along does not, of course, justify the wife in seeking a divorce. Nor does the difference in their ages, which the circuit judge assigned as the principal reason for their difficulties. That difference in age existed at the time they exchanged their marital vows; to borrow an expression from another branch of the law, it was one of the risks Mrs. Guinn assumed when she took him 'for better or for worse'.

As in all other such cases, the question is: Whose fault was it that their marriage was a failure? Mrs. Guinn lays it principally to her husband's 'morose' disposition and anti-social habits. He, on the other hand, says that there was too much social activity of the wrong kind; that his wife's family played too large a part in their lives; that there was too much drinking by the members of her family and their friends, and that Mrs. Guinn herself drank to excess. Due to these influences, he charges, she neglected him, her baby and her home, and these were the causes that brought unhappiness into their married life. He does not, however, himself seek a divorce, but belives that with the adoption by his wife of different habits of living they can keep their family intact and yet make a success of their marriage.

The evidence on behalf of the plaintiff fell far short of proving specifications No. 2 and No. 5 of her complaint. Her testimony is that her husband told her to leave their home, not 'on numerous occasions', but on one occasion, and this occurred at the time of their final quarrel on November 28, 1948, after she had announced her determination to leave. Her testimony contradicts, instead of proving, specification No. 5. She admitted on cross-examination that her husband denied her nothing. The evidence shows that he is an industrious man with a responsible job in the lumber business. His income during their marriage was around $4,000.00 a year except for a few months when he was out of work. It is shown without dispute that he was as generous with her as his means would permit, and that, instead of forcing her to work, he objected to her working and thought that she should be at home looking after the interests of her family.

Defendant had been twice divorced before he married the plaintiff. In support of specification No. 7 she testified that he told her about only one prior marriage. He contradicted this, and further testified that his prior marriages were a matter of record in the government office where they both worked at the time, and that she had access to these records. She did not deny the latter statement. Without attempting to resolve this conflict, it is sufficient to say that her testimony shows that it was a matter of indifference to her whether he had been married once or twice before, and that the incident did not take on importance until she decided to divorce him.

Specification No. 6 relates to an occurrence when they were both in bed with their baby and a controversy arose over which one should hold him. They had been drinking earlier in the evening and he struck her on the face with the back of his hand. That is Mrs. Guinn's version. He testified that he could recollect no such incident, and denied that it ever occurred. Mrs. Guinn testified that this was the only time he struck her and that the blow hurt her pride more than it hurt her physically. But, in an affidavit in support of a motion for an order restraining him from molesting her, filed at the time that the suit was commenced, Mrs. Guinn swore that 'defendant on several occasions has struck and beaten me and inflicted upon me bodily injuries' and that she was 'in fear that he will attempt to attack or molest me at the present time'. There is absolutely nothing in the evidence to indicate that she was put in fear of her husband by the occurrence above described or by any other conduct on his part while they were living together.

The foregoing discrepancies in her testimony, and others which need not be specifically mentioned, seriously affect her credibility as a...