Mahoney v. Mahoney

• Decision Date: 19 May 1931
• Docket Number: 1638
• Citation: 299 P. 273,43 Wyo. 157
• Parties: MAHONEY v. MAHONEY
• Court: Wyoming Supreme Court

299 P. 273

43 Wyo. 157

MAHONEY v. MAHONEY

No. 1638

Supreme Court of Wyoming

May 19, 1931

APPEAL from District Court, Crook County, HARRY P. ILSLEY, Judge.

Action by Murel Mahoney against Lowell Mahoney. Judgment for plaintiff and defendant appeals.

Affirmed.

For the appellant there was a brief and oral argument by James T McGuckin, of Sundance, Wyoming.

Plaintiff is not entitled to a divorce. The evidence established the fact that plaintiff's parents were primarily responsible for domestic difficulties of the parties. There is no evidence of any cruelty practised on plaintiff by defendant. Mental suffering is not ground of divorce, unless it impairs health. 14 Cyc. 604; Robinson v. Robinson, 23 A 362; Mahnken v. Mahnken, 82 N.W. 870; Barnes v Barnes, (Calif.) 16 L. R. A. 664. Divorce should not be granted upon trivial grounds. Public policy requires the preservation of the marriage relation. Vanduzer v. Vanduzer, (Ia.) 31 N.W. 956. Divorce will be denied in the absence of testimony indicating that any effect mentally or physically resulted to plaintiff, from language used by defendant. Maben v. Maben, (Ia.) 34 N.W. 462. The trial court erred in granting the plaintiff a divorce.

For the respondent, the cause was submitted on the brief of Otis Reynolds, of Sundance, Wyoming.

The evidence fully established cruelty, practised by defendant, and the decree of the trial court is well supported by the evidence. The unfriendliness of plaintiff's parents toward defendant was shown to be justified, by reason of his conduct. It was unnecessary to show that defendant's conduct caused physical or mental suffering. 19 C. J. 49; Carpenter v. Carpenter, (Kas.) 2 P. 122; Dunn v. Dunn, (Mich.) 114 N.W. 385. The youth of plaintiff called for the greatest consideration and kindness of treatment for plaintiff. Boyle v. Boyle, (N. J.) 72 A. 1118. A judgment will not be reversed where sustained by substantial evidence.

James T. McGuckin, in reply.

The authorities cited by respondent do not apply to the facts here. There was no abortion, nor a showing that the husband insisted upon it. The general rule laid down by the authorities is that alleged cruelty must be shown to have caused impairment of health. The causing of mere unhappiness is insufficient. McClenahen v. McClenahan, 80 A. 677; Cline v. Cline, 10 Ore. 474; Lyon v. Lyon, 134 P. 650.

BLUME, Justice. KIMBALL, Ch. J., and RINER, J., concur.

OPINION

BLUME, Justice.

The plaintiff herein, Murel Mahoney, was granted a divorce from the defendant Lowell Mahoney, and the latter has appealed.

No good purpose would be subserved in setting forth the details of the facts as shown by the record. Plaintiff and defendant were married in 1928, the former 18, the latter 22 years of age. They had no trouble or difficulties until a child was expected. Plaintiff claims and testified that the defendant was displeased with that fact, gave her medicine to produce an abortion, attempted for months to induce her to get rid of the child, persisting therein even after its birth, and then, after the baby was born, virtually gave her the choice, either to dispose of the child or to leave him. While, during the early period of pregnancy, she willingly took the medicine, it seems clear that she afterwards changed her mind, and she testified that when the choice above mentioned was presented to her, she informed her husband that she would live with her child, and that she soon thereafter, and within about two weeks after the child's birth, left defendant's home and returned to the home of her parents. There is, contrary to defendant's contention, corroborative testimony of plaintiff's claim. The latter's step-mother testified to an admission on defendant's part of the vital portion of plaintiff's charge. And a few days after the parties separated, defendant wrote a letter, admitting that he was the cause of the separation and begged forgiveness, and promised that he would do better in the future. No adequate explanation of this letter, or of the causes of separation were given by defendant in his testimony. True, the facts above mentioned were denied by him, and he was to some extent corroborated by other testimony, but the credibility of the witnesses was for the trial court, and we cannot interfere with its finding on this point.

The basis for the divorce, as stated in the petition, was extreme cruelty, and counsel for the defendant contends that the facts shown by the plaintiff are not such as to authorize a divorce on the ground mentioned, first, because the plaintiff failed to testify to any physical or mental suffering, and second, because the record fails to disclose that plaintiff's health was impaired. There is testimony, however, that immediately after the birth of the child, plaintiff cried continually, and mental suffering on the part of the plaintiff, assuming that her testimony is true, must have been the inevitable result...