Krupp v. Krupp

Decision Date05 December 1967
Docket NumberNo. 1083,1083
Citation126 Vt. 511,236 A.2d 653
PartiesJohn KRUPP v. Carol Ann KRUPP.
CourtVermont Supreme Court

Joseph S. Wool and Saul Lee Agel, Burlington, for plaintiff.

O'Neill, Delaney & Valente, Rutland, for defendant.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

KEYSER, Justice.

The libellant seeks a decree of divorce on the ground that the libellant has lvied apart from the libellee for more than three consecutive years without fault on his part and that the resumption of marital relations is not reasonably probable. 15 V.S.A. § 551(7). The case is here on appeal by the libellant from findings of fact and the judgment order of the court dismissing the libel.

To warrant the granting of a divorce on the grounds stated, the libellant msut affirmatively prove three essential elements: (1) that the parties have lived apart for more than three years, (2) that the living apart was without fault on the part of the libellant, and (3) that the resumption of marital relations is not reasonably probable.

It is the duty of the court, in making findings, to sift the evidence and state the facts. Savard v. George, 125 Vt. 250, 257, 214 A.2d 76; Thompson v. Smith, 119 Vt. 488, 496, 129 A.2d 638. This means that the court considers all the evidence bearing on the issues with impartial patience and adequate reflection and then formulates the findings couched in its own language. The court with little exception adopted verbatim the libellee's requests to find as its findings of fact. When a trial court makes its findings in this manner, it is in danger of being charged with overlooking the proper performance of its judicial function, and such practice is to be avoided, as should any procedure that suggests a failure to exercise independent judgment.

Notice of appeal from the judgment order brings the whole case, including all questions litigated in the court below which affect the final judgment, if they are briefed, to this Court for review. Century Indemnity Co. v. Mead, 121 Vt. 434, 436, 159 A.2d 325.

The libellee argues that the libellant's brief does not specifically put in issue any of the findings made below. We do not agree. The libellant's brief points directly to error in the finding that 'the separation was the fault of the libellant.' Enough appears to satisfy us there is a sufficient basis to present this question for review. 12 V.S.A. § 2385; Bresette v. Knapp, 121 Vt. 376, 378, 159 A.2d 329.

The libellant claims finding 22 is not a finding of fact but is the conclusion of the court and is not supported by the evidence.

This finding reads:

'22. That the said libellant testified that separation was without fault on his part, that a resumption of the marital relationship is not reasonably probable however, that the said libellee, Carol Ann Krupp, testified that she would take her husband back today, and that as far as she was concerned that the resumption of marital relationship was reasonably probable.

Based upon the foregoing findings, the court is unable to find upon any creditable evidence that the separation of the parties, as the libel was so amended as of November 1963, was the fault of the libellee, Carol Ann Krupp.

That based on all of the evidence, the separation of the parties as of November 1963, was the fault of the libellant, John Krupp.'

The first paragraph of this finding is clearly not a finding and cannot stand. This is not such a finding as the law requires. It merely recites testimony of the parties. A recitation of evidence in findings is not a finding of the facts contained in the testimony related and it cannot be so construed. Savard v. George, supra; Amey v. Hall, 123 Vt. 62, 65, 181 A.2d 69.

The second paragraph of this finding as the court states is 'based upon the foregoing findings.' At the same time the court states it is 'unable to find upon any creditable evidence' that the separation was the fault of the libellee. This is a statement that in the trier's judgment the credible evidence did not produce a preponderance of evidence upon this subject for a finding to be made to this effect. Little v. Little, 124 Vt. 178, 181, 200 A.2d 276. It does not infer there was no evidence as to her being at fault for the separation, but does mean there was not a preponderance of evidence upon the subject sufficient for a finding to be made to this effect. Crossman v. Crossman, 124 Vt. 127, 130, 197 A.2d 818.

The parties separated on November 7, 1963 and have lived apart continuously ever since. The fact that the court could not find whether there was fault on the part of the libellee does not establish that the living apart was due to fault on the part of the libellant. The libellant has the burden of proving lack of fault on his part. Obviously, the libellee's conduct might well have a bearing on the issue and have a tendency to show the libellant's freedom from fault, or lack of it, in living apart from the libellee. But it is not a question for the court to find by the...

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  • Golden v. Cooper-Ellis
    • United States
    • Vermont Supreme Court
    • March 2, 2007
    ...562, 817 A.2d 6, 9 (2002) (mem.) (`"A recitation of evidence . . . is not a finding of the facts'. . . .") (quoting Krupp v. Krupp, 126 Vt. 511, 514, 236 A.2d 653, 655 (1967)). The only findings on this issue are embedded in the conclusions as All of the stock options granted to the defenda......
  • State v. Percy
    • United States
    • Vermont Supreme Court
    • January 22, 1988
    ...court's findings are Krupp findings--that is, they are recitations of testimony rather than findings of fact. See Krupp v. Krupp, 126 Vt. 511, 514, 236 A.2d 653, 655 (1967). We need not reach that argument because we hold that the nature of the findings is fatal to the State's claim of harm......
  • In re M.E.
    • United States
    • Vermont Supreme Court
    • December 27, 2019
    ...recitation of testimony" is not sufficient. In re E.C., 2010 VT 50, ¶ 14, 188 Vt. 546, 1 A.3d 1007 (mem.) (citing Krupp v. Krupp, 126 Vt. 511, 514, 236 A.2d 653, 655 (1967) ). On the contrary, such a recitation—called a " Krupp finding"—"is not the equivalent of a finding of the facts conta......
  • Lewandoski v. Vermont State Colleges, AFL-CIO
    • United States
    • Vermont Supreme Court
    • February 7, 1983
    ...142 Vt. 340, ---, 455 A.2d 333, 337 (1982); In re J.S., Juvenile, 139 Vt. 6, 13, 420 A.2d 870, 874 (1980); Krupp v. Krupp, 126 Vt. 511, 514, 236 A.2d 653, 655 (1967). However, in this case the Board did make appropriate findings of fact, although they included them in the body of their opin......
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