Kientz v. Kientz

• Decision Date: 03 June 1912
• Citation: 149 S.W. 86,104 Ark. 381
• Parties: KIENTZ v. KIENTZ
• Court: Arkansas Supreme Court

149 S.W. 86

104 Ark. 381

KIENTZ v. KIENTZ

Supreme Court of Arkansas

June 3, 1912

Appeal from Jefferson Chancery Court; John M. Elliott Chancellor affirmed.

Decree affirmed.

Coleman & Gantt, for appellant.

1. Under the testimony appellant is entitled to a divorce either under the second or third clause of the fifth subdivision of section 2672, Kirby's Digest; but, under the modern rule actual personal violence or an apprehension of it is not essential to bring a case within the terms of a statute permitting a divorce for cruelty. Any misconduct which tends to impair health, or creates an apprehension of bodily injury, is cruelty, though no personal violence is inflicted. 9 A. & E. Enc. Law, 788; 30 Gratt. (Va.), 307; 60 W.Va. 9; 6 Ind. 105; 43 N.W. 616; 50 Id. 979; 47 P. 101; 132 S.W. 379; 128 Id. 218; 124 N.W. 544; 106 P. 126; 100 Id. 321; 110 S.W. 652; 144 Id. 68; 4 Nev 395; 76 Ga. 319; 67 Id. 771; 21 Col. 16; 64 N.W. 561; 144 S.W. 68, 73. There is no law which justifies a man in choking or using force upon his wife for any purpose. 21 Cyc. 1150; 115 Ga. 578; 41 S.E. 993; 18 S.W. 9.

The charge contained in the cross complaint and the publishing of it the world without proof to sustain it was such an act of cruelty and indignity as entitles appellant to a divorce. 14 Cyc. 606; 97 Ark. 125, 130.

2. The law does not require that appellant be entirely without fault. 9 Ark. 507; 44 Ark. 429. But the testimony does not establish fault on her part. There is no competent testimony whatever of misconduct on her part. Neither the uncorroborated testimony of appellee nor the alleged admissions of appellant would be sufficient. Kirby's Dig., § 2677; 54 Ark. 20.

Taylor & Jones, for appellee.

1. The finding of the chancellor that neither party was entitled to relief, each being equally to blame, is sustained by the evidence, and should not be disturbed. The finding of a chancellor is strongly persuasive. 97 Ark. 130; 9 Ark. 517. It will not be disturbed unless against the clear preponderance of the evidence.

2. A wife can not establish any claim against her husband founded on her own violation of conjugal duty. 9 Ark. 517.

OPINION

FRAUENTHAL, J.

This is a suit for divorce brought by the wife upon the statutory grounds that the husband was guilty of such cruel treatment as to endanger her life and offered such indignities to her is to render her condition intolerable. The husband denied each allegation of the complaint made against him, and by cross complaint charged conduct upon the part of the wife from which adultery might be inferred, and sought a divorce upon that ground. A great volume of testimony was taken by both parties relative to these charges and the countercharge, and upon a final hearing of the case the chancellor dismissed both the complaint and cross complaint. From the decree thus rendered, the plaintiff alone has appealed.

The parties were reared in the State of Ohio, the plaintiff at Deleware and the defendant at Cardington. They were married at Cleveland in October, 1901, and about six months after their marriage moved to Pine Bluff. During their married life, the defendant was employed upon a monthly salary, and maintained his wife and himself in a condition suitable to the sphere in life in which they moved. He provided as well for his wife as his financial circumstances would permit, and never gave her just cause for complaint of failure to do all within his financial means to serve her needs and wants. During the first year or two of their married life, they lived happily together, and no trouble appears to have arisen to mar their peace until she heard that he had been gambling. When she heard this, she remonstrated with him, and she testified that he then cursed her. She stated that he continued to gamble from time to time; that he neglected her on Sundays by remaining from home; that he became irritable, and would curse on a very slight provocation, and oftentimes without any provocation. She claims that he not only cursed her but also the servants without any reasonable cause, and that this continued for several years, and until their separation in May, 1911. She does not claim, however, that he ever laid a heavy hand upon her or ever threatened to do her personal injury until in May, 1911, when she claims he forced her to write the note hereinafter referred to; and thereupon she left him. Her testimony does not go to the point of showing that his alleged neglect of her was studied, or that his alleged cursing and abusive language evinced any settled hatred of her. On the other hand, the defendant denied that he had ever cursed his wife, or that he had ever used abusive words or epithets to her. He testified that she made no complaint of any cursing or abuse upon his part until in March, 1911, when a different domestic trouble arose. He claims that he at that time overheard a conversation between his wife and a young lady who was boarding with them in which she stated that she was receiving letters from a married man in Pine Bluff, who was their family physician. He testified that on the following day he intercepted an anonymous letter in the handwriting of this physician, couched in endearing terms and addressed to his wife. He stated that when he confronted his wife with this letter she at first denied any knowledge relative to it, and then admitted that said physician had become enamoured of her and had written letters to her. This the wife denied, and claimed that the letter was concocted by the defendant in conspiracy with his brothers to blackmail this physician. In a day or two thereafter the plaintiff left for her home in Ohio, where she remained about six weeks. The defendant testified that, shortly after her return, he surprised her while writing a note to the physician, which he took from her by force. This the wife denied, and she testified that her husband had compelled her to write this note. Shortly afterwards she again left for her home in Ohio, and thereupon instituted this suit for divorce in July, 1911.

It would serve no useful purpose to detail the testimony relative to these charges or to discuss the circumstances surrounding them in order to show with whom the truth may rest. The testimony relative to the cursing and indignities done and offered by the defendant is largely that of the plaintiff; and the testimony as to the authenticity of the letter he claims to have intercepted and of the motive or cause of the wife writing the note, is largely that of the defendant. The testimony of these parties as to these matters is in absolute conflict. While the husband and wife are both competent to testify in divorce proceedings between them, yet it has been held that a decree of divorce will not be granted upon the uncorroborated testimony or admissions of either party. Rie v. Rie, 34 Ark. 37; Kurtz v. Kurtz, 38 Ark. 119; Brown v. Brown, 38 Ark. 324; Scarborough v. Scarborough, 54 Ark. 20, 14 S.W. 1098.

The testimony of the plaintiff relative to the use of profane language by defendant and his cursing is corroborated to some extent by other witnesses, and the testimony of the defendant that he did not curse or abuse his wife in any manner is supported to some extent by other witnesses with whom they lived for some time during their married life. But, with whichever party the truth as to this question of fact may rest, it clearly appears from the testimony that the plaintiff's health was in nowise impaired by any mental suffering she may have endured from this alleged misconduct of the defendant, and her condition was not thereby rendered unbearable. Her testimony shows that his curses and profanity rendered her unhappy; but it does not show that this made living with him intolerable. On the contrary, she testified that he often apologized for his cursing and misconduct, and begged her forgiveness; she continued to live with him without any complaint made to any one of this alleged misconduct until in March, 1911, when the defendant claimed that he had intercepted the letter alleged to have been written to her.

The testimony of the defendant relative to the interception of this letter and the confession of his wife that she had received letters from the physician is corroborated by his two brothers. But, even if the contention of defendant relative to this is true, we do not think that it is sufficient to prove any act of adultery on the part of plaintiff. At the most, it only proves that, through his neglect to manifest for his wife that deep affection and love which he evinced for her in his early married days, and by inattention to her pleasures and her pastimes, she permitted another to show her some attention and probably evidence of affection, and began probably to entertain some reciprocal feeling of that nature. This was an...