Kostachek v. Kostachek
| Decision Date | 26 May 1914 |
| Docket Number | 3323. [d1] |
| Citation | 140 P. 1021,40 Okla. 747 |
| Parties | KOSTACHEK v. KOSTACHEK. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Evidence examined and held to show subsequent acts of cruelty sufficient to revive condoned adultery.
Additional Syllabus by Editorial Staff.
Condonement is forgiveness conditioned on future good conduct.
Error from District Court, Tulsa County; L. M. Poe, Judge.
Action by Toney Kostachek against Joseph Kostachek, for divorce. Judgment for defendant, and plaintiff brings error. Reversed.
See also, 124 P. 761.
W. K Moore, of Ponca City, for plaintiff in error.
H. B Martin, of Tulsa, Chas. E. Bush, of Lindsay, Cal., and Jno. Y. Murry, Jr., of Tulsa, for defendant in error.
On July 2, 1910, Toney Kostachek, plaintiff in error, sued Joseph Kostachek, defendant in error, in the district court of Noble county, for divorce, alleging, among other things, adultery. On July 13, 1910, there was condonement of that offense whereupon she dismissed the suit and returned to the bed and board of defendant, where she remained until November 22, 1910, at which time she left him and brought the instant suit for divorce in the district court of Tulsa county, alleging the same offense. On December 15, 1910, defendant answered and set up as stated, filed a copy of the petition in the Noble county suit as an exhibit to his answer, and pleaded, among other things, the condonation. After issue joined by reply, in effect a general denial, there was trial to the court and a demurrer sustained to plaintiff's evidence, and judgment accordingly, and plaintiff brings the case here. There is no conflict in the testimony. The evidence discloses that the parties were married at Perry, Okl., April 15, 1909; that immediately thereafter, defendant failing to arrange otherwise, plaintiff went to live with her father near that place, and defendant went to live at Tulsa, where he has since continued to reside; that, being informed that defendant was living in adultery, plaintiff went to Tulsa and ascertained the fact for herself and returned to Perry and brought suit, as stated; that thereafter they became reconciled, and plaintiff agreed to dismiss her suit and live with defendant, which she did upon a promise made her by defendant that he would quit the woman he was living with and give plaintiff a piano the woman was using and $10,000 worth of property, all of which he failed to do; that after she had dismissed her suit, although defendant was worth some $60,000, they, over her protest, lived together in two rooms of a poorly furnished house in Tulsa on 40 cents per day; that, while there is no direct proof of subsequent adultery, the relations existing between defendant and the woman he had been living with continued friendly, and, known to plaintiff, he continued to visit her house on one pretext or another; that all during her married life plaintiff's health was poor, and she decreased in weight from some 130 to 75 pounds, owing, as her physician told her, to her domestic troubles; that while living together in Tulsa, when importuned by plaintiff to carry out his promise concerning the property, defendant would become sullen and refuse to speak to plaintiff for a day at a time, and on one occasion solicited her to run a bawdyhouse and become a prostitute and give him an opportunity to levy blackmail on the customer; that, before bringing the instant suit, she became pregnant, but afterwards miscarried, owing to physical weakness caused by worrying over the case and the way her husband treated her. In holding, as he did,...
To continue reading
Request your trial