Morse v. Morse
| Citation | 229 A.2d 228,126 Vt. 290 |
| Decision Date | 04 April 1967 |
| Docket Number | No. 1991,1991 |
| Parties | Pearl S. MORSE v. Everett L. MORSE. |
| Court | United States State Supreme Court of Vermont |
Monte & Monte, Barre, for libellee.
Everett L. Morse, pro se, for libellant.
Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.
This is an action of divorce brought on the grounds of intolerable severity. Partial hearing was held in the Washington County Court on July 1, 1966, but was continued several times thereafter until the final hearing on September 1, 1966. Findings of Fact were filed on Nov. 2, 1966. A decretal Order was filed on Nov. 7, 1966 granting a divorce to the libellant on the grounds of intolerable severity. Libellee has appealed to this Court from the Decree, as well as upon excepions to certain Findings of Fact made by the lower court.
The circumstances attending the cause, from a time soon after the divorce action was brought, up to and including the hearing of the appeal in this Court, as disclosed by the record, are unusual and may help in an understanding of the questions and problems here presented.
The libellee retained, and then discharged, at various times, two different attorneys to represent him in this cause before it was heard. At the time of the hearings below, the libellee was confined in the States Prison in Windsor and notified the lower court then he would appear pro se in the divorce cause in which he was a party. He declined to retain counsel in his appeal to this Court and drew his own brief. Libellee also argued his appeal pro se before this Court. However, at the time of argument, counsel appointed by this Court to represent him in a criminal case heard on the same day, was present with him.
The essence of the Findings of Fact upon which the Decree Nisi for intolerable severity was predicated, are the libellee had beaten his wife and children, had refused to support them, and had carried on affairs with other women. All of this conduct, the lower court found, had caused great physical and mental suffering to the libellant, so that she was forced to seek medical attention and constant treatment.
Some four pages of the libellee's brief are devoted to quotations taken from the transcript, and then attempting to refute the statements quoted, by arguments and comments of his own tendered as evidence. By this method he seeks to present to us facts which are outside the record of the case and they cannot be considered by us. Langevin v. Gilman, 121 Vt. 440, 444, 159 A.2d 340; Burlington Building and Loan Assn. v. Ayres, 108 Vt. 504, 189 A. 907.
The libelee did not take the witness stand in the hearing below, and offered no testimony to dispute the evidence given by the libellant and her witnesses relative to the acts of the libellee which the lower court found to constitute intolerable severity. The only question presented to this Court on appeal from a finding of fact is the sufficiency of evidence to support a specific finding if raised by the appellant's brief. Neverett v. Towne, 123 Vt. 45, 49, 179 A.2d 583; 12 V.S.A. Sec. 2385. This question is not raised in the brief of the libellee and is not, therefore, for our consideration.
He attempts to attack the Findings of Fact made below in the same manner as he attempted to dispute the testimony appearing in the record of the case, that is, by inserting contrary assertions of facts in his brief to those made in the findings. But no testimony was given in the hearing below to support his assertions of fact here, nor do they appear in the record. We cannot consider them. Langevin v. Gilman, supra.
The problems encountered by a layman who refuses the aid of counsel in preparing and arguing a case before an appellate court, and the difficulties presented to a court by such procedure, are illustrated in considering the next point presented by the appellee.
Under the general heading of 'Motion for reversal and order of a new trial' we are presented with several claims of error by the libellee. He asserts that the lower court had no jurisdiction of the divorce proceeding here in question because the libellant did not have the requisite domicile under 15 V.S.A. Sec. 593 to bring her action in Washington County.
The pertinent section of the statute in question is: 'Libels for divorce for any cause and for affirming or annulling the marriage contract shall be brought in the county in which the parties or one of them resides.'
This contention of the libellee is based upon the fact that at the time the hearing was held, the libellant resided elsewhere than in Washington County. But she was residing in Washington County at the time she brought her action, and the fact that she may have removed from Washington County after the bringing of the divorce petition did not remove the jurisdiction of the Washington County Court. Sage v. Sage, 115 Vt. 364, 368, 61 A.2d 557. Libellee takes nothing by this exception. While we have considered the question raised by the libellee, we need not have done so. The dilatory plea of lack of jurisdiction should have been raised by a motion to dismiss in the lower court. 12 V.S.A. Sec. 1034; In re Estate of Collette, 122 Vt. 231, 235, 167 A.2d 361.
The next contention is that his misconduct was condoned by the libellant between he time the divorce libel was filed in 1964 and the time of hearing in the case, and that the lower court should have so found and dismissed the case. This claim of condonation is supported only by the libellee's assertion that it occurred in his brief. The record contains only the undisputed testimony of the libellant that there was never any condonation by her of the libellee's behavior. What we have previously said about our being confined to the record of the case before us has equal application here.
We are next confronted with the serious accusation by the libellee that he was denied a fair hearing below because of the prejudice demonstrated against him by both the presiding judge and the assistant judge, who heard the case in Washington County.
The libellee's first claim of prejudice is that the presiding judge disclosed in the hearing below a disposition to accept as determined an issue yet to be decided. We again turn to the record to determine if the claim of the libellee is well founded.
The original hearing on this divorce cause started before the Washington County Court on July 1, 1966. During that hearing, the libellee, conducting his own case, stated that if given more time he could bring into court witnesses to prove condonation. He also stated that he planned to have a lawyer present to represent him if he were granted a continuance. A continuance was granted until July 25, 1966. Upon another request for a continuance by the libellee, the court c...
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State v. Towne
...Amendment to the United States Constitution, so we need not consider the issue with respect to that provision. See Morse v. Morse, 126 Vt. 290, 292, 229 A.2d 228, 230 (1967) (facts outside the record cannot be considered by this Court). At most, it may be presumed that counsel was appointed......
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First Vermont Bank & Trust Co. v. Village of Poultney, 65-75
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