Hybertson v. Hybertson, Nos. 20259

• Court: Supreme Court of South Dakota
• Writing for the Court: MILLER
• Citation: 1998 SD 83,582 N.W.2d 402
• Parties: Theresa HYBERTSON, Plaintiff and Appellee, v. Robert E. HYBERTSON, Defendant and Appellant. . Considered on Briefs
• Decision Date: 03 June 1998
• Docket Number: Nos. 20259,20268

Page 402

582 N.W.2d 402 1998 SD 83 Theresa HYBERTSON, Plaintiff and Appellee,
v.
Robert E. HYBERTSON, Defendant and Appellant. Nos. 20259, 20268. Supreme Court of South Dakota. Considered on Briefs June 3, 1998.
Decided July 29, 1998.

John K. Nooney and Michael V. Wheeler of Morrill, Thomas, Nooney & Braun, Rapid City, for plaintiff and appellee.

Brian L. Utzman, Rapid City, for defendant and appellant.

MILLER, Chief Justice.

¶1 Robert and Theresa Hybertson both appeal from the judgment in their divorce action. Robert claims the trial court erred in granting the divorce on the grounds of extreme cruelty. He also argues the visitation schedule established by the trial court violates the Establishment Clause of the First Amendment to the United States Constitution. Theresa appeals the trial court's denial of her attorney fees. We affirm in part, and reverse and remand in part.

FACTS

¶2 Theresa and Robert were married on September 1, 1979, and have two children. Their marriage began to deteriorate after Robert joined the Jehovah's Witnesses religion. Theresa claimed Robert tried to continually impose his newfound religious practices on her and the children. This, she alleged, caused her significant mental suffering.

¶3 In June 1995, Theresa initiated divorce proceedings. Because divorce other than for adultery goes against his religion's teachings, Robert would not agree to a divorce grounded on irreconcilable differences. The divorce trial was bifurcated. After hearing the evidence in the first stage, the trial court found that, as a result of Robert's actions concerning his religion, Theresa experienced depression, frustration, abandonment, and felt hurt and lost. It therefore granted a divorce on the grounds of extreme mental cruelty. Following the second stage of the trial, the trial court, among other things, granted custody of the children to Theresa and set up a visitation schedule for Robert. The visitation schedule provided that the parties were to divide visitation on the holidays to the extent that each of them celebrated a particular holiday.

¶4 Robert appeals, raising the following issues:

1. Whether the trial court's finding of extreme mental cruelty was clearly erroneous.

2. Whether the trial court erred in restricting Robert's holiday visitation to only those holidays observed by him as a Jehovah's Witness.

¶5 Theresa raises the following issue:

3. Whether the trial court erred in denying Theresa's request for attorney fees.

DECISION

¶6 1. The trial court's finding of extreme mental cruelty was not clearly erroneous.

¶7 Robert claims the trial court erred in determining that extreme mental cruelty existed as grounds for the divorce. He contends there may have been enough to establish irreconcilable differences but, since he did not consent to that, a divorce should not be granted. See Dussart v. Dussart, 1996 SD 41, p 5, 546 N.W.2d 109, 111. We do not agree.

¶8 The trial court's factual findings establishing grounds for divorce are not to be set aside unless clearly erroneous. Osman v. Keating-Osman, 521 N.W.2d 655, 657 (S.D.1994) (citations omitted). We must give "due regard" to the ability of the trial court to judge the credibility of the witnesses. Id.

¶9 SDCL 25-4-4 defines extreme cruelty as "the infliction of grievous bodily injury or grievous mental suffering upon the other, by one party to the marriage." We have held that:

Any definition of extreme cruelty in a marital setting must necessarily differ according to the personalities of the parties involved. What might be acceptable and even commonplace in the relationship between rather stolid individuals could well be extraordinary and highly unacceptable in the lives of more sensitive or high-strung husbands and wives. Family traditions, ethnic and religious backgrounds, local customs and standards and other cultural differences all come into play when

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trying to determine what should fall within the parameters of a workable marital relationship and what will not.

Pochop v. Pochop, 89 S.D. 466, 467-68, 233 N.W.2d 806, 807 (1975). We must not focus on isolated incidents, but look at the evidence " 'in light of the full context of the marriage[.]' " Schaack v. Schaack, 414 N.W.2d 818, 820 (S.D.1987) (quoting Rykhus v. Rykhus, 319 N.W.2d 167 (S.D.1982)).

¶10 The trial court's findings that Robert's actions caused Theresa to feel depressed, frustrated, lost, abandoned, and hurt are supported by the evidence. Theresa testified that she felt abandoned by Robert and that his religion was like a "mistress." She felt like she and the children were living in a "Gestapo" environment. Robert would tell Theresa that she would not live in paradise on earth if she was a nonbeliever and that she would "just lay in the dirt." Theresa claims she is no longer able to have a normal conversation with Robert, as he continually states he is there to teach her and the children. He is always quoting Bible verses to her. Theresa also became depressed and felt abandoned because Robert is no longer involved in their former family practices. His religion does not allow him to celebrate holidays and birthdays, or be concerned with other worldly things. This, she claims, has caused a severe rift in the family. She also is concerned over the effect this has had on their children. She specifically worries about some of his beliefs, i.e., he would never permit them to have a blood transfusion should it be necessary.

¶11 Robert claims the United States Constitution and the South Dakota Constitution prevent his religious beliefs from being the basis of grounds for divorce. However, he mischaracterizes the trial court's decision. Robert's beliefs are not the basis of the extreme cruelty, his own actions are. As recognized in Pochop, religious backgrounds may be considered in looking at the marital relationship and whether extreme cruelty exists. 89 S.D. at 467-68, 233 N.W.2d at 807. As the trial court found, Robert has a right to his own beliefs, but he does not have the right to force those beliefs on Theresa. See Smith v. Smith, 61 Ariz. 373, 149 P.2d 683, 684 (1944) (stating that "[i]t is all right for each [spouse] to have his or her own [n]otions and religious beliefs ..., but if one carries such beliefs to the extent of disrupting and destroying the family life, it seems his conduct becomes cruel treatment and outrage[ous] towards his or her mate."); Sinclair v. Sinclair, 204 Kan. 240, 461 P.2d 750, 752 (1969) (holding that "[t]he religious zeal of a spouse may be carried to such lengths that domestic harmony is completely disrupted and the legitimate ends of the matrimony destroyed, with the result that the life of the complaining spouse is rendered intolerable."); Golden v. Arons, 36 N.J.Super. 371, 115 A.2d 639, 640 (1955) (holding that "[t]he nub of this case is not that defendant changed his religion--that...