Mertens v. Mertens
| Decision Date | 15 February 1951 |
| Docket Number | No. 31562,31562 |
| Court | Washington Supreme Court |
| Parties | MERTENS, v. MERTENS. |
Copeland and Tollefson, Tacoma, for appellant.
Dorsey, Ruff and Morton, Tacoma, for respondent.
The trial court dismissed an action brought by a husband for a divorce, finding that the wife had 'been guilty of no conduct which is cruel or calculated to subject the plaintiff to personal indignities rendering his life burdensome.' The husband appeals.
The husband's testimony built up a case of what seemed to him excessive religious zeal on the part of his wife: a refusal to use cosmetics or to patronize beauty parlors, and disapproval of smoking, drinking, dancing, card playing, and attending shows, none of which constitute cruelty or personal indignities per se. However, he testified further concerning her limitation of the use of the radio in the home except for religious programs; her criticism of the denomination of which his family were members, calling the members of his family hypocrites and telling them that they were 'going to the devil' unless they 'turned to her church'; alienating the affections of the parties' child; denying him conjugal rights; and creating an atmosphere in the home in which neither his friends nor his family felt welcome and which became so unbearable that he could not continue to live there. These things, if true, did constitute cruelty and personal indignities. He further testified concerning her refusal to strain foods for him and her failure to rub his chest and back, both directed by his doctor, and her complete unconcern as to his condition when stricken with appendicitis.
The wife freely conceded that she did not participate in the amusements referred to, because of her religious convictions; denied that she had attempted to restrict her husband's participation in them; denied that she had limited the character of radio programs except as to certain 'awful' programs; denied any criticism of the religious denomination of which his family were members; and denied the creation of a hostile atmosphere so far as his family or friends were concerned. However, there was no categorical denial of his charges that she had alienated the affections of their child and refused him his conjugal rights. She testified that she had strained his food, had rubbed his chest and back, and had secured someone to drive him to the hospital when he had the attack of appendicitis. She told of her attendance on him and of a tender and touching scene in the hospital on that occasion.
From the momorandum decision of the trial judge, we gather that he was of the view that he was confronted with a grave constitutional question involving the guarantee of religious liberty contained in the first amendment to the United States constitution and the 'Absolute freedom of conscience in all matters of religious sentiment, belief, and worship' set forth in the Washington State constitution, Art. I, § 11, as amended; and that he concluded that the wife's conduct was insulated by these constitutional provisions from a charge of cruelty.
As stated in the opening paragraph hereof, the finding of fact on which the judgment of dismissal was based is that the wife had 'been guilty of no conduct which is cruel or calculated to subject the plaintiff to personal indignities rendering his life burdensome.'
At least one purpose of findings of fact is to enable this court to review the questions on appeal. Kinnear v. Graham, 133 Wash. 132, 233 P. 304. In Michaelson v. Hopkins, Wash., 224 P.2d 350, we had occasion to point out the unsatisfactory situation so far as a reviewing court is concerned when there is a negative finding such as the one with which we are here concerned, in which the finding may be the result of either (1) failure to believe certain or (2) the conclusion that, though the evidence is believed, it is not legally sufficient to establish a cause of action.
If the trial judge made the finding we have quoted because he believed the wife and not the husband, or because he did not know which to believe and therefore the husband, as plaintiff, had failed to sustain the burden of proof, we would have no hesitancy in affirming his dismissal of the case,...
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Quiner v. Quiner
...were motivated by sincere religious convictions does not immunize her under the shield of the first amendment. Mertens v. Mertens (1951) 38 Wash.2d 55, 227 P.2d 724. These two young people apparently enjoyed a brief but happy marriage until Linnea decided to follow her father's lead over he......
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Muhammad v. Muhammad
...See Sinclair v. Sinclair, 204 Kan. 240, 461 P.2d 750 (1969); Golden v. Arons, 36 N.J.Super. 371, 115 A.2d 639 (1955); Mertens v. Mertens, 38 Wash.2d 55, 227 P.2d 724 (1951); Smith v. Smith, 61 Ariz. 373, 149 P.2d 683 (1944); Wilson v. Wilson, 58 Cal.App.2d 641, 137 P.2d 700 (1943); Krauss v......
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Bowman v. Webster, 32236
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