Mahnken v. Mahnken
| Decision Date | 02 May 1900 |
| Citation | 82 N.W. 870,9 N.D. 188 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass County; Lauder, J.
Action by Alice E. Mahnken against Charles E. Mahnken. Judgment for defendant, and plaintiff appeals.
Affirmed.
David R. Pierce and George H. Phelps, for appellant.
The test of extreme cruelty under our statute where there is no personal physical violence is conduct which inflicts upon the innocent party grievous mental suffering. § 2739 Rev Codes. Grievous mental suffering is sufficient ground for divorce as extreme cruelty although it does not impair the health. Barnes v. Barnes, 95 Cal. 171, 30 P. 298; Fleming v. Fleming, 95 Cal. 439, 30 P. 566; Smith v. Smith, 119 Cal. 183, 48 P. 730. Any unjustifiable conduct upon the part of either the husband or the wife which so grievously wounds the mental feelings of the other or so utterly destroys the peace of mind of the other as to utterly destroy the legitimate ends and objects of matrimony constitutes extreme cruelty, although no physical violence may be inflicted or even threatened. Carpenter v. Carpenter, 2 P. 122; Gibbs v Gibbs, 18 Kan. 419; Bennet v. Bennet, 24 Mich 151; Whetmore v. Whitmore, 49 Mich. 417; Caruthers v. Caruthers, 13 Ia. 266; Wheeler v Wheeler, 53 Ia. 511; Smith v. Smith, 6 Ore. 100; Kennedy v. Kennedy, 73 N.Y. 369; Latham v. Latham, 30 Grat. (Va.) 307; Cook v. Cook, 3 Stock. 195; Beyer v. Beyer, 50 Wis. 254; May v. May, 62 Pa. 206; Beebe v. Beebe, 10 Ia. 133. Though habits of intoxication do not form sufficient grounds for divorce in favor of the wife, they are material to be considered in connection with other objectionable acts on his part as tending to show greater liability of a recurrence of ill treatment than if he were sober. Rodman v. Rodman, 20 Grant. Ch. (N. C.) 428; Coursey v. Coursey, 60 Ill. 186; Harman v. Harman, 16 Ill. 85. Habits of profanity may be considered in connection with habits of intoxication as giving color to his conduct. Powers v. Powers, 20 Neb. 529. A course of systematic ill treatment, consisting in continual scolding, and fault finding, using unkind language, studied contempt, and many other petty acts of a malicious nature, when sufficiently long continued and when producing sufficiently serious results, constitute cruel and inhuman treatment and are sufficient grounds for granting a decree. Marks v. Marks, 57 N.W. 651.
John E. Greene and R. M. Pollock, for respondent, filed a printed argument without citation of cases.
Plaintiff brought an action for divorce against the defendant on the statutory ground of extreme cruelty. The complaint shows that these parties were married on June 28, 1889; that three children have been born of said marriage, the youngest being now three years old. It is alleged that for three years last past the defendant has treated the plaintiff with such extreme cruelty as to cause her to suffer extreme anguish of mind and grievous mental and physical suffering. The complaint specifies specially cruel treatment on May 1, 1897, and on May 1, 1898, and on November 1, 1898. There is also a general specification that whenever store bills were presented to defendant for payment he would treat plaintiff with extreme cruelty; and also that the defendant was addicted to the use of intoxicating liquor, and when under the influence thereof he became specially abusive. This abuse was all in the form of language. No physical ill treatment is claimed. The defendant answered, in denial, and also by way of cross bill alleging extreme cruelty on the part of plaintiff. His specifications need not be noticed. After a prolonged trial, and the examination of a large number of witnesses, the trial court found that the allegations of extreme cruelty were not proven upon either side, and the court dismissed both the complaint and the cross bill. The plaintiff appeals, and asks a retrial of the case.
We have carefully studied the testimony from first to last, and in the light of the comments made thereon by counsel, and we are unable to reach a conclusion differing from that of the trial court. As defendant has not appealed, he can ask nothing affirmative at the hands of this court. His allegations of cruelty are material only so far as they may tend to establish recrimination. But the proofs so far failed to establish that cruelty demanded by the statute as constituting any ground for divorce that we dismiss defendant's charges without further notice. Plaintiff's proofs cannot, however, be thus summarily dismissed. Preliminary to any discussion of it, we may state generally that the record shows that when these parties were married defendant had ready means in the sum of about $ 10,000. His annual income since that time has been about $ 2,500. Plaintiff at the time of the marriage owned some unimproved city property in Fargo. One tract of it adjoined her father's home. Upon this tract defendant, with his own means, erected a dwelling house at a cost of about $ 5,000. The parties resided in this house from 1892 until their separation in October, 1899. The house was at least comfortably furnished. The annual expense of maintaining the home and family was about $ 2,000. It was a home of comfort and some luxury, and we think from the evidence we are justified in saying that in the main it was the home of average happiness. But this was not always true. There were differences in the characteristics of the husband and wife which, while not more marked than are often found, were yet of a nature to produce friction. The defendant is frugal in his habits and by nature. His counsel on one occasion applies to him the term "close-fisted," and it may not be inappropriate. He was, at least, careful of his earnings and thoughtful for the future. The plaintiff's evidence shows her to care more for the present. She is evidently more liberal in her views of appropriate expenditures; not that the evidence establishes extravagance on her part, but she was not in sympathy with the conservative views of her husband. All their real differences seem to revolve around this one point of expenditures. As head of the family, the right must be conceded to the husband to control the family expenses. We, however, regard it as proven that the defendant, when irritated by bills presented, or by the requests of his wife for money, used towards her on several occasions language that cannot be justified under any circumstances. Yet, conceding this, we are well satisfied that...
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