Hiltbrand v. Hiltbrand

• Decision Date: 30 April 1948
• Docket Number: 7414
• Citation: Hiltbrand v. Hiltbrand, 68 Idaho 275, 193 P.2d 391 (Idaho 1948)
• Parties: HILTBRAND v. HILTBRAND
• Court: Idaho Supreme Court

193 P.2d 391

68 Idaho 275

HILTBRAND v. HILTBRAND

No. 7414

Supreme Court of Idaho

April 30, 1948

Appeal from District Court, Ninth Judicial District; Bonneville County; C. J. Taylor, Judge.

Affirmed.

Albaugh Bloem, Hillman & Barnard and A. A. Merrill, all of Idaho Falls, for appellant.

A cross-complaint in an action for separate maintenance by a wife must allege that the separation is not due to her fault and that the husband has neglected or refused to provide support. 30 C.J. 1086; Fowler v. Fowler, 31 Or. 65 49 P. 589; Benton v. Benton, 214 Ala. 321, 107 So. 827.

Affirmative defenses to a divorce action must be specially pleaded. Recrimination is an affirmative defense. 17 Am.Jur. 312; Annotation: 76 A.L.R. 990; Avery v. Avery, 148 Cal. 239, 82 P. 967; Springman v. Springman, 97 Cal.App. 768, 276 P. 351; Chapman v. Chapman, 129 Ill. 386, 21 N.E. 806; Klekamp v. Klekamp, 275 Ill. 98, 113 N.E. 852.

Alvin Denman, of Idaho Falls, for respondent.

Plaintiff must be denied a divorce where his misconduct has provoked the cruelty complained of. 27 C.J.S., Divorce, § 56, page 598; Boeck v. Boeck, 29 Idaho 639, 646, 161 P. 576; Spofford v. Spofford, 18 Idaho 115, 108 P. 1054.

There is no fixed or rigid rule of pleading in separate maintenance actions. 42 C.J.S., Husband and Wife, § 620, page 237.

The court was authorized to direct payment of maintenance where the parties have separated. Vollmer v. Vollmer, 43 Idaho 395, 253 P. 622; Sauvageau v. Sauvageau, 59 Idaho 190, 195, 81 P. 731; Sutton v. Sutton, 145 Wash. 542, 260 P. 1076; Stitt v. Stitt, 8 Cal.2d 450, 65 P.2d 1297; Walker v. Manson, 49 Idaho 468, 474, 289 P. 86.

Hyatt, Justice. Givens, C. J., and Budge, Holden- and Miller, JJ., concur.

OPINION

Hyatt, Justice.

Appellant husband brought this suit for divorce on the ground of extreme cruelty, alleging that the wife constantly quarreled and nagged at him, falsely accused him of infidelity and association with other women, refused him matrimonial access, and exhibited toward him an attitude of meanness and indifference. Respondent wife denied the allegations of cruelty, and by cross-complaint sought separate maintenance and custody of the children, alleging her lack of funds, the ability of the plaintiff to pay, and that "the plaintiff and defendant separated on or about January 15, 1947, and have not lived or cohabited together as husband and wife since said time."

Appellant by answer to the cross-complaint admitted the separation as alleged, and although denying other allegations, offered to support the wife and children in a reasonable sum commensurate with his earning capacity.

Upon trial, findings of fact and conclusions of law were waived. The decree of the trial court, so far as material to this appeal, is:

"It is ordered, adjudged and decreed that the divorce prayed for by plaintiff be denied; that the plaintiff and defendant, according to the proofs submitted, are living separate and apart from each other; that while they are thus living separate and apart from each other, the defendant is given the custody of Wesley Rushton, Margaret Ann and Ruth Hiltbrand, minor children of plaintiff and defendant, during such period of separation, or until the further order of the court, provided plaintiff may visit said children at all reasonable times and places;

"It is further decreed that as long as the parties remain separated the defendant shall have the use of the home of the parties to said action located at 295 Fourth Street, Idaho Falls, Idaho, the same to be maintained at defendant's expense; that until the further order of the court the plaintiff shall pay to defendant on the fifteenth of each and every month, commencing August 15, 1947, the sum of $ 80.00 for the support of the defendant, and the said sum of $ 120.00 for the support of said minor children;"

No useful purpose would be served by reviewing the evidence in detail. The testimony of the appellant was to the effect that after the marriage, the parties gradually began to quarrel about matters affecting the children, the management of the home, and sex conduct; that other things ultimately led to quarreling and fighting; that the wife's sex conduct was unsatisfactory; that she often accused him of being untrue; that she told him many times she wanted a divorce and threatened to leave him; that she would wake him up at night to quarrel and bicker; that on some occasions she struck, kicked and scratched him; that he suffered humiliation and mental anguish as a result of all of such conduct of the wife.

The evidence on the part of the wife in substance was that their married life was fairly happy until about two years prior to this action; that the husband's attitude then began to change, and he became discontented and irritable; that she never refused to live with him as a wife, nor exhibited an indifferent, mean or sulky attitude toward him; that there had never been any quarrels, dissatisfaction or displeasure on the part of the husband with reference to her sex conduct; that she had never told appellant she wanted a divorce. Her testimony was, in general, a denial of appellant's charges, except that another woman entered the scene, and the conduct and association of her husband with this woman aroused her suspicions; that nagging and quarreling resulted from her remonstrances with and questions to her husband concerning this woman and such association, as well as from her worry of the prospect of a broken home and jealousy of his attentions to another; that she had not accused appellant of running with other women, but did accuse him, not so much of being untrue, as of being indiscreet in his conduct with this other woman. Much of the remaining evidence for the wife concerned such association and attentions of the husband toward this third party.

It further appears that, as a result of a quarrel in regard to an incident over this woman, appellant took a room in the basement, and shortly afterward moved out of the home. While appellant claims the wife told him to get out of the house, the wife says a second quarrel resulted when she asked him to move back upstairs and tried to talk the situation over with him, and that he later left the home.

Appellant assigns as error the admission, over objection, of his association and conduct with this other woman, contending the same was recriminatory matter, not affirmatively pleaded. Conceding that recrimination as such must be so pleaded, the evidence here did not have to be offered on the theory of a defense on the ground of recrimination, but was admissible under the general denial to rebut appellant's charges that the wife had falsely accused him of infidelity and association with other women.

A general denial puts in issue the ground alleged for divorce (17 Am.Jur. 312), which here is extreme cruelty.

It is only false, unfounded or unwarranted accusations of infidelity or improper conduct which constitute cruelty. If the charges are true or justified or made in good faith and on the basis of doubt and suspicion reasonably born of appearances, it is not cruelty to make them. Brandt v. Brandt, 178 Cal. 548, 174 P. 55; Sallee v. Sallee 63 Cal.App. 54, 218 P. 69; Ritter v. Ritter, 103 Cal.App. 583, 284 P. 950; Sample v. Sample, 82 Neb. 37, 116 N.W. 953; Beach v. Beach, 4 Okl. 359, 46 P. 514; Schouler Divorce Manual, page 133. See also Spofford v. Spofford, 18 Idaho 115, 108 P. 1054; Parman v. Parman, 94 Or. 307, 180 P. 906, 185 P. 922.

Appellant next contends the court erred in denying a divorce. In so doing, the court necessarily found against appellant on the issue of cruelty.

In Donaldson v. Donaldson, 31 Idaho 180, at page 184, 170 P. 94, at page 95, this court said: "* * * The particular acts of cruelty complained of are not of themselves the determining factor, but the question as to whether the acts of cruelty caused grievous mental suffering on the part of the innocent party is the determining question under the statute. * * *"

No fixed legal rule for determining the existence of extreme cruelty in any given case can be laid down. The judge who tries the case and has the parties before him for observation in the light of the evidence, is the one to whom the law commits in the first instance, the determination of whether or not extreme cruelty has been established, and this court will not disturb the findings of the trial court unless there has been a want of ordinary good judgment and an abuse of discretion by that court. De Cloedt v. De Cloedt, 24 Idaho 277, 133 P. 664; Donaldson v Donaldson, 31 Idaho 180, 170 P. 94; Piatt v. Piatt, 32 Idaho 407, 184 P. 470; Morrison v. Morrison, 38 Idaho 45, 221 P. 156; Clark v. Clark, 58...