Howay v. Howay

• Decision Date: 17 December 1953
• Docket Number: No. 7960,7960
• Citation: 74 Idaho 492,264 P.2d 691
• Parties: HOWAY v. HOWAY.
• Court: Idaho Supreme Court

Page 691

264 P.2d 691

74 Idaho 492

HOWAY v. HOWAY.

No. 7960.

Supreme Court of Idaho.

Dec. 17, 1953.

Elam & Burke, Boise, for appellant.

Hawley & Marcus, Boise, for respondent.

TAYLOR, Justice.

The parties were married June 21, 1922, at Seattle. In January, 1942 they moved to California, residing at San Mateo until July 28, 1950, when the plaintiff separated from the defendant and moved to Boise, Idaho.

Plaintiff brought this action for divorce on the grounds of extreme cruelty. The acts and conduct alleged and testified to by the plaintiff were for the most part denied or minimized by the defendant in her testimony. Thus issues of fact were presented to be determined by the trial court, the trier of the facts. Under our rule, there being sufficient substantial and competent evidence to support its findings thereon, and the findings not being clearly against the weight of the evidence, the findings of the trial court are binding on this court and will not be disturbed.

'The trial judge is the arbiter of conflicting evidence and his determination of the weight, credibility, inferences and implications thereof is not to be supplanted by this Court's impressions or conclusions from the written record.' Sellars v. Sellars, 73 Idaho 163, 248 P.2d 1063, 1064.

The evidence is ample to support the findings briefly summarized as follows:

Commencing in the year 1937 the defendant became dissatisfied with the standard of living which the plaintiff was able to provide for his family and thereafter frequently, continually and habitually criticized, bickered and carped at plaintiff about his inability to provide a larger income; humiliated and embarrassed him in the presence of strangers and friends by belittling his earning capacity, and making unfavorable comparisons with her brothers, and others; that she complained to his employers about his salary, causing him to quit one job and to be discharged from another. After she had become engaged in real estate speculation in California, with money inherited from her father's estate, she made unfavorable comparisons before strangers and friends of his business ability and earning capacity as against her own; after he was discharged by his last employer in California and the parties jointly engaged in a real estate and insurance business at San Mateo, the defendant continuing the same course of conduct, humiliated and embarrassed the plaintiff by statements to employees and others that she furnished the money to set up the business, that she was the manager and would make the decisions; she bought two homes, one in part from an advance on her inheritance and the other in part from her separate funds, which the plaintiff considered too expensive for his earning capacity, and which caused him considerable embarrassment with his employers and fellow employees; because of this continuous course of conduct and the resultant humiliation and embarrassment the plaintiff suffered great mental anguish, and such worry and distress that on two occasions he was afflicted with stomach ulcers, on one of which occasions, in the summer of 1946, he was confined for a period of some weeks in a sanitarium because of an attack of ulcers and a nervous breakdown; plaintiff could not dissuade her from continuing to pursue her business career to which she constantly devoted more and more time, to the neglect of the home, and that following the humiliation which she inflicted upon him in the conduct of the joint real estate and insurance venture, and her plans to engage in the development of a large subdivision, the plaintiff left the defendant and moved to Boise, where he accepted employment which had been previously offered him.

The defendant, seeking a decree for separate maintenance, alleged extreme cruelty on the part of the plaintiff. In her behalf the evidence would support findings to the effect that the plaintiff left without notifying the defendant of his intention to do so and without telling her where he was going. In this connection, the evidence is that in 1949 plaintiff advised the defendant of the offer which he had received from Boise to become the manager of an insurance agency there, and that he intended to accept it. But she refused to move from San Mateo. The defendant's chief reliance for recrimination, however, is based upon plaintiff's attentions to and associations with another woman.

It appears from the record during the year 1949 and the fore part of 1950, the plaintiff made frequent calls upon this other woman in San Mateo, he claiming that the calls were in connection with his handling of her insurance business and the rental of an apartment owned by her, and negotiations with the rent control authority which he carried on as her agent. She came to Boise, Idaho, at his request in November, 1950, and there he lived in the same house or apartment with her and they took several trips together to different points in the state; that this woman represented him to the landlord as her brother. The plaintiff inists, however, that there were no intimate or unlawful relations between himself and the other woman, and none is charged, although suggested, by the defendant.

The trial court found that the defendant had failed to support the allegations of her cross-complaint, that the plaintiff had inflicted a course of cruel and inhuman conduct upon her, causing her mental and physical suffering. The defendant, appellant, assigns as error the failure of the trial court to make specific findings upon the allegations of the cross-complaint, and that the relationship between plaintiff and the other woman were sufficient to entitle her to a judgment for separate maintenance, and sufficient to establish the affirmative defense of recrimination. The facts as to the relationship between the plaintiff and the other woman being largely admitted by the plaintiff, may be taken as found by the court, hence the finding which the court did make was in effect its conclusion that these facts do not establish extreme cruelty or recrimination. Therefore, assuming the facts admitted by the plaintiff as findings, the question then arises as to whether or not the conclusion reached by the court is sustained by the record.

Our law provides that a divorce 'must be denied upon showing: * * * Recrimination; * * *.' § 32-611, I.C.

'Recrimination is a showing by the defendant of any cause of divorce against the plaintiff, in bar of the plaintiff's cause of divorce.' § 32-613, I.C.

In Morrison v. Morrison, 38 Idaho 45, 221 P. 156, this court speaking through Mr. Justice Budge, said:

'While it is true that respondent did not at all times conduct herself in such a manner as becomes a wife and mother, such acts and conduct upon her part were not of such a character as would justify the acts and conduct of the appellant as found by the trial court and sustained by the evidence, neither were such acts and conduct upon her part the result of her own initiative, but rather the result of the acts and conduct of the appellant. The rule seems to be that, where recrimination is relied upon as a defense, that one spouse, although guilty of misconduct not such as would support a decree of divorce, will not be denied the divorce where the other spouse is guilty of such cruel and inhuman treatment as justifies the court in dissolving the marriage status. In other words, mere indiscretion, although reprehensible, does not amount to recrimination.' At page 51 of 38 Idaho, at page 158 of 221 P.

We might rest the decision here upon the authority of the Morrison case, but it is justifiably urged that plaintiff's conduct was such as to entitle defendant to a divorce and therefore is a complete bar to his cause. Undoubtedly many divorces have been granted upon such a showing, where it was also shown that the complaining party knew of the association of her spouse with such third person and suffered cruelty by reason thereof. Parsons v. Parsons, 72 Idaho 455, 243 P.2d 973. Here there are other considerations to be weighed. While these parties were living at San Mateo, the defendant had little, if any, knowledge of any association between her husband and the third party. There is nothing to indicate that she suffered any mental anguish by reason thereof. She testified that friends told her of it after plaintiff had left, and she was then very much upset. The record supports the finding of the court that he conduct, upon which plaintiff bases his cause for divorce, was in no way induced, provoked, or contributed to by his attentions to any other woman. The trial court found that the separation was caused by the 'continuous nagging, criticizing and badgering of the plaintiff by the defendant' and

'That the constant, continuous, and determined nagging, criticizing and belittling attitude and acts of the defendant and cross-complainant toward the plaintiff and cross-defendant over a long period of years destroyed the legitimate objects of matrimony between the parties, and was calculated to and did constitute extreme cruelty to the plaintiff and cross-defendant.'

We do not infer that conduct of the plaintiff subsequent to the separation and subsequent to the filing of the action for divorce may not be relied upon by the defendant as a recriminatory defense. However, the conduct of the plaintiff after the separation could in no case be a defense on the ground that it provoked the cruelty charged against the defendant as the cause of the separation and ground for divorce. Hence, we are here limited to a consideration of the sufficiency of such conduct to bar plaintiff's cause on the ground of recrimination under the statute.

The doctrine of recrimination is said to be based upon the equitable precept that he who comes into equity must come with clean hands. But, it cannot be compared to that precept if it must be applied mandatorily by the divorce court in every case where improper conduct on the part of the plaintiff...