Kamp v. Kamp

• Decision Date: 05 April 1927
• Docket Number: 1322
• Citation: 254 P. 689,36 Wyo. 310
• Parties: KAMP v. KAMP [*]
• Court: Wyoming Supreme Court

254 P. 689

36 Wyo. 310

KAMP v. KAMP ^[*]

No. 1322

Supreme Court of Wyoming

April 5, 1927

APPEAL from District Court, Natrona County; BRYANT S. CROMER, Judge.

Divorce action by Joseph C. Kamp against Carolyn S. Kamp. From a judgment for plaintiff, defendant appeals.

Affirmed.

B. G Westover, L. H. Sennett, and C. E. Geiger, for appellant.

Plaintiff prescribed morphine for defendant and cannot complain that she is an addict; Wilson v. Wilson, 12 L. R. A. 524; Shellenberger v. Ranson, 25 L. R. A. 564. Divorce cannot be predicated on declarations, confessions, admissions or by collusion of the parties; 5013 C. S.; Lundy v Lundy, (Ariz.) 202 P. 809; Reubelmann v Reubelmann (Idaho.) 220 P. 404; Andrews v. Andrews, 120 Cal. 184; 19 C. J. 133; 3 Wigmore on Evidence, 2067; Piatt v. Piatt, 32 Idaho 407; 4992 C. S.; McMillan v. McMillan, (Wash.) 193 P. 673; Pease v. Pease, (Nev.) 217 P. 239; Crumbley v. Crumbley, (Ore.) 186 P. 423; 19 C. J. 93, and cases in note; Redington v. Redington, (Colo.) 29 P. 811; Carmichael v. Carmichael, (Ore.) 211 P. 916; Tillison v. Tillison, (Vt.) 22 A. 531. Reformation of a drug addict between time of separation and bringing of divorce, based on such habit, will defeat proceedings; Smithson v. Smithson, 74 So. 149. It was error to exclude letters received by plaintiff; Austin v. Long, (Ga.) 57 S.E. 964. Letters showing improper relations are admissible; Purinton v. Purinton, 101 Me. 250; Bizer v. Bizer, (Ia.) 81 N.W. 465. Divorce would not be granted to subserve the interest of society; McMillan v. McMillan, supra; Colvin v. Colvin, (Wash.) 46 P. 1029. Evidence, if admissible for any reason, should be admitted; Borkheim v. Borkheim, (Cal.) 223 P. 429; Coney v. Glynn, (Cal.) 106 P. 506.

Nichols & Sterritt, and E. E. Enterline, for respondent.

It is impossible to determine what appellant's contentions are from an examination of her brief, which has not been prepared in accordance with Rule 14 of this court; the appeal should be dismissed for violation of the rule; Boswell, Admr. v. Bliler, 9 Wyo, 277; Horn v. State, 12 Wyo. 80; Phillips v. Brill, 15 Wyo. 521; Riordan v. Horton, 16 Wyo. 363; Ry. Co. v. Lampman, 18 Wyo. 97; Pearce v. Holm, 23 Wyo. 417; Richie v. State, 28 Wyo. 117; Wood v. Stevenson, 30 Wyo. 171; Sayles v. Wilson, (Wyo.) 222 P. 1020. The question of cruelty was decided upon conflicting evidence, which involved defendant's use of morphine; the court found upon all of the issues in favor of plaintiff; the rules of evidence contended for, in relation to the introduction of letters, do not apply to the facts in the present case; the Bogardus letter was properly excluded; 10 R. C. L. Sec. 351, p. 1147; Jones Comm. on Evidence, Vol. 2, Sec. 269, p. 493; Comm. v. Eastman, 48 Am. Dec. 596. The divorce was not granted to serve the interests of society, and there is nothing in the record to suggest that it was; the divorce is amply supported by the evidence; Schirmer v. Schirmer, (Wash.) 145 P. 980; Ferraris v. Ferraris, 211 P. 470; Wespe v. Wespe, 216 P. 814; Van Kamp v. Van Kamp, 199 P. 885; Heiser v. Heiser, (Wash.) 220 P. 761. The fact that both parties contributed to the cause of disagreements, and are guilty of cruel conduct toward each other, will not defeat a divorce action; Swanda v. Swanda, (Okla.) 232 P. 62. Where evidence is conflicting, findings based thereon will not be disturbed; Ketchum v. Davis, 3 Wyo. 164; Riordan v. Horton, 16 Wyo. 363; Hunt v. City, 26 Wyo. 160; McFadden v. French, 29 Wyo. 401. If there is evidence to support the findings, the court will not review the facts; Huber v. Bank, (Wyo.) 234 P. 31; Wettlin v. Jones, (Wyo.) 234 P. 515; Edwards v. Willson, (Wyo. ) 219 P. 233. Plaintiff's motion for dismissal of the appeal should be granted.

Before BLUME, Chief Justice, BROWN, District Judge, and RINER, District Judge. BLUME, C. J., and RINER, District Judge, concur.

OPINION

BROWN, District Judge.

This is an action for divorce. Plaintiff and defendant were married at Manhattan, Kansas, in 1904. They are both physicians, educated, intelligent, and stand high socially in Casper, where they have resided for the past ten years. The plaintiff, J. C. Kamp, has been a practicing physician during all of the time he has resided in this state. The defendant, Carolyn Kamp, has not practiced medicine in this state. They have no children. Plaintiff charges in his petition that for a period of ten years defendant has been a habitual user of narcotics; that while under the influence of narcotics, defendant tried to kill him; that for a period of ten years, she has continually, wrongfully accused him of undue familiarity with his nurses, female patients and women friends, accusing them of being immoral and prostitutes; that on numerous occasions she had quarreled with plaintiff's female patients, causing him to lose them; that the conduct and acts of the defendant had caused plaintiff grievous mental pain and suffering, and was interfering and injuring him in his business. Defendant, in her answer, denied all of these allegations of wrong doing on her part. In her cross petition, she charges that for a period of ten years he, on numerous occasions, had called her a dope fiend and accused her of being immoral and unfaithful; that in 1920, in connivance with one Ray Cook, he had caused an insanity charge to be filed against her; that more than ten years ago, when defendant was ill and suffering from neuritis, the plaintiff purposely and with the knowledge that such treatment would subject defendant to the influence of drugs, prescribed and administered to the defendant for a long period of time large quantities of morphine; that he possessed an uncontrollable temper and without cause frequently abused and insulted defendant with vile and profane language. She also charged that for a number of years he had and maintained improper associations with other women; that in public and private, in the presence of the defendant, he had given such attention to other women as to humiliate and degrade her; that on numerous occasions he had boasted to her of the fact that numerous other women had become infatuated about him. She charged that he had carried on improper correspondence with other women, and that in 1920, without just cause, plaintiff had willfully deserted defendant. She prayed for separate maintenance.

At the conclusion of the trial, the court found in favor of the plaintiff on the charge of indignities, and rendered judgment granting him a divorce. This decree included a property settlement which is not questioned here and needs no further mention. Defendant brings the case here on direct appeal.

The evidence is long. It is the usual contested divorce record. Both parties are at fault. There are charges and counter charges. Each must have known that such conduct has only one ending--the divorce court. While there were minor charges, most of the record is taken up with his charge against her of morphinism, her counter charge that he was responsible for her contracting the habit, and her charge of his misconduct with other women. Both signally failed in establishing the charge concerning the drug habit. It is true that she contracted the morphine habit and for ten years was a constant excessive user of it, yet he prescribed it and wrote all of the requisitions on which it was obtained. She was also a physician and knew as well as he the dangers of its use, yet she insisted on using it. She testified that it was the only drug that would alleviate to some extent her suffering from neuritis. While he wrote and signed the requisitions on which the drug was obtained, it was always delivered direct to her. She called at the drug store and obtained it or it was delivered by the drug clerk direct to her at her home. She always administered it and was free to determine the amount of the dose and how often it should be taken. It is disappointing that these parties, both knowing the terrible effect upon the human body of this drug, permitted and continued its use until the druggist finally lodged an insanity charge against her. The lower court found against both plaintiff and defendant on their respective charges of morphinism.

Much time was taken up with the charge of his relations with other women. That she repeatedly charged him with undue familiarity with other women there is no dispute. She brings the charge into court in her answer and cross petition. The question for the court to determine was whether or not it was true. If continuously, wrongfully made over a long period of time to such an extent as to interfere with his business and social relations, and destroy his peace of mind, it would amount to an indignity under our statute. Rose v. Rose, 129 Mo.App. 175; 107 S.W. 1089; Crow v. Crow, 29 Ore 392, 45 P. 761. Much time is taken in her testimony with this phase of the case. She testified to an almost continuous undue friendliness and intimacy with many women during their entire residence in Casper. She claims that he constantly had many women in his life. Except in the case of his nurse, who was also his office manager, this whole testimony stands uncorroborated. There is some corroboration of her charge of undue friendliness towards this office manager and nurse. This corroboration in the main consists of little facts and circumstances that, without her charge, would appear innocent in themselves. For instance, she says that they took a trip to Thermopolis together. It appears, when all of the evidence is considered, that they did not go together or come home together. Incidentally they were at Thermopolis at the same time and in the public swimming pool at the same time. Another time she testified that they attended a social event in Casper together. It appears from all the...