Hildebrand v. Hildebrand
| Decision Date | 23 December 1913 |
| Docket Number | Case Number: 3150 |
| Citation | 137 P. 711,41 Okla. 306,1913 OK 744 |
| Parties | HILDEBRAND v. HILDEBRAND. |
| Court | Oklahoma Supreme Court |
¶0 1. DIVORCE--Grounds--"Extreme Cruelty." Any unjustifiable conduct on the part of the husband, which so grievously wounds the mental feelings of the wife, or so utterly destroys her peace of mind, as to seriously impair her bodily health or endanger her life, or such as utterly destroys the legitimate ends and objects of matrimony, constitutes extreme cruelty within the meaning of the statute, although no physical or personal violence is inflicted or even threatened.
2. SAME. False and groundless charges of adultery with divers men, made at intervals during a long course of years, by a husband against the wife, constitute extreme cruelty within the meaning of section 4962, Rev. Laws 1910.
3. SAME--Amount of Alimony--Discretion. Where a divorce is granted the wife by reason of the fault of the husband, the allowance of permanent alimony rests in the sound judicial discretion of the trial court, and is to be exercised with reference to established principles, and on a view of all the circumstances, such as the husband's estate and ability, at the time the divorce is granted, the wife's condition and means, and the conduct of the parties.
4. SAME. An allowance of alimony to the wife, of property approximating in value $ 10,000, where the remainder of the husband's estate, not considering life insurance policies maturing at various times in the future, is worth between $ 7,500 and $ 8,000, where the major portion in value of the property awarded the wife consists of a homestead acquired by the parties jointly during their marriage, and where the wife is given the care, custody, and control of two of the three minor children (the third and oldest child not being provided for in the decree), will not be disturbed on appeal as an unreasonable allowance.
W. K. Moore, for plaintiff in error.
John S. Burger, for defendant in error.
¶1 The first, second, third, and fourth assignments of error involve either the legal sufficiency of plaintiff's petition, or the proof submitted in its support, and may therefore be considered together. The petition charged extreme cruelty in that defendant falsely and maliciously, and without grounds, accused plaintiff of having committed adultery with divers men, at divers times and places, during the last ten years preceding the filing of her petition. Other acts of cruelty, set forth in the petition, unnecessary to be here reiterated, together with the acts of cruelty mentioned, it was charged, caused plaintiff great suffering, mental anguish and pain, worry of mind, and great humiliation, with the result that her health was greatly impaired, and she was rendered almost insane. The facts charged were abundantly proved. Defendant, a widower 40 years of age, married plaintiff, who was at the time of her marriage 21 years of age, at Matfield Green, Kan., on the 5th day of May, 1892. As a result of their union three children were born, aged at the date suit was brought, respectively, sixteen, thirteen, and eleven years. The first step in the family discord was when plaintiff visited her parents about three months after her marriage, and was falsely accused by her husband with having clandestinely met a gentleman acquaintance, though no criminal intimacy was in this instance charged. About two years after their marriage, they moved to Oklahoma, where defendant made homestead entry on a claim in Kay county. Shortly thereafter defendant became jealous of one James Patterson, who had called at their home on some neighborly errand. In 1902 defendant accused plaintiff of being criminally intimate with a hired hand, who was at the time in their employ. At the time defendant had left plaintiff at home sick in bed, with no one to attend her. He threatened to kill plaintiff on this occasion, if he could only be positive of her guilt. On account of defendant's said conduct on this occasion, plaintiff became melancholy, nervous, and physically ill. Plaintiff was also jealous of the local school-teacher, who occasionally called at the Hildebrand home to see the defendant, who was clerk of the school board. Joe Schmidt, a neighbor, was another of whom defendant was jealous. Dr. Elliott, at one time the family physician, was another toward whom he manifested much jealousy, charging plaintiff with having drunk whisky with him. Referring to a visit by plaintiff to her old home in Kansas, where for several months she was under a physician's care, she stated that:
"Mr. Hildebrand had just worn me out by sexual abuse, just completely worn me out, until I was forced to beg him to let me alone, and he would not do it, and I finally became hysterical and cried, and he called me a strumpet and said that while I had been at my old home I had been intimate with at least a dozen men and had spent that winter around the Old Central Hotel, and that he would not live with me again to save my soul from hell."
¶2 Wille Wildgrube, a neighbor boy, also came in for a share of his insane jealousies; with him he accused plaintiff of being unduly intimate. Kelley Kersey and the Johnson boys were others toward whom defendant formed an aversion on account of his ungrounded suspicions. On one occasion, when two young men came to the home to call on a lady guest visiting them, defendant, upon his return, flew into a violent rage, broke a panel out of the door, and caused a disturbance. Dr. Conway was another with whom defendant charged plaintiff with having had criminal relations, saying that he would bet that plaintiff had slept with him 50 times. Dr. Gearhardt was still another with whom plaintiff was charged with having been criminally intimate. The evidence shows not the slightest ground whatever for any of these brutal and indefensible charges. They stand uncontradicted, save in the uncorroborated and very unsatisfactory evidence of the defendant himself. Plaintiff, at the time of her marriage, was a school-teacher, and, the evidence unmistakably shows, a woman of some considerable refinement. The effect upon her of these long years of continuous ill treatment is perhaps best told in her own language. The day before the birth of one of her children, some question about what physician would be called arose. She says that defendant assumed to be indignant at Dr. Elliott on some account, and said that he would show him that they did not need to have a doctor, and that "when I was taken sick on the 30th day of December, on a very cold night, we were alone and Mr. Hildebrand--well, I offended his sensibilities with my sickness, his olfactory nerves were so offended and he spoke to me so brutally that my heart was nearly broken, and I was obliged to go out in a cold room and stay there frequently for intervals of a half an hour, and it was so cold in there that water spilled on the floor was frozen, and it made my sickness unnatural, and I suffered a great deal, and when I cried he raised up and says, 'Well, for God's sake, what are you bellering for?' he says, 'if you can't sleep, there isn't any reason why you should keep the whole house awake;' and after that of course I stifled my groans until after daylight." Harry was born the next afternoon, no physician being sent for during her labors. On another occasion, while plaintiff was confined to her bed with illness, a neighbor boy dropped in to inquire of her condition. The conduct of defendant when he learned of this fact is explained by plaintiff thus wise:
¶3 Referring to the birth of the youngest son, the witness testified:
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