Mosher v. Mosher

• Court: North Dakota Supreme Court
• Writing for the Court: SPALDING, J.
• Citation: Mosher v. Mosher, 16 N.D. 269, 113 N.W. 99 (N.D. 1907)
• Decision Date: 09 September 1907

113 N.W. 99

16 N.D. 269

ALFRED MOSHER v. EUGENIA MOSHER

Supreme Court of North Dakota

September 9, 1907

Action by Alfred Mosher against Eugenia Mosher. Judgment for plaintiff, and defendant appeals.

Affirmed.

J. F Callahan and M. A. Hildreth, for appellant.

It is a sufficient answer to a petition for a divorce that petitioner was regardless of his conjugal duties. Skinner v Skinner, 5 Wis. 449; Poor v. Poor, 8 N.H. 308; Best v. Best, 1st Adams, 410; Holden v. Holden 1st Hagg. R. 453; Wood v. Wood, 2 Paige, 108; Bishop on Marriage and Divorce, Chap. 20 and 22; Bedell v. Bedell, 1st J. C. R. 604; Watkins v. Watkins, 2 Ark. 96; Waldron v. Waldron, 9 L. R. A. 489, 4 Barb. 320; Johnson v. Johnson, 4 Wis. 154, 4 Johnson Chc. 187; 2 Md. Chc. 341; Bishop on Marriage and Divorce, 454 and 459; 15 Ill. 186.

Chas. E. Stowers and Engerud, Holt & Frame, for respondents.

Much weight will be given the views of the trial court, in a case of this kind. Mahnken v. Mahnken, 9 N.D. 188, 82 N.W. 870; Fleming v. Fleming, 30 P. 566.

Passive endurance or conjugal kindness are not evidence of condonation, unaccompanied by express agreement to condone. Taylor v. Taylor, 5 N.D. 58, 63 N.W. 893; Rev. Codes 1905, section 4060.

OPINION

SPALDING, J.

Action by Alfred Mosher against Eugenia Mosher for divorce, on the ground of extreme cruelty, consisting in intentionally worrying and annoying the plaintiff, and pursuing a systematic course of ill treatment, using profane language, and telling obscene stories, and other acts, all of which are alleged to have caused the plaintiff grievous mental suffering. The defendant denies these charges, and asks affirmative relief, charging the plaintiff with failing to provide her with the necessaries of life, and with repeatedly accusing her of having married him from mercenary motives, and of her having loved other men, and of her having illicit intercourse with other men. The answer also sets out that the plaintiff is the owner of property to the amount of $ 24,000, and asks for suit money and permanent alimony in the sum of $ 5,000. The plaintiff replied, denying the charges of the defendant, and also that he is the owner of property of the value of $ 24,000, and alleges that he is worth a very much smaller sum, and that his property is incumbered in the amount of $ 3,600.

The trial court granted a decree to the plaintiff, and we think it was justified in doing so. It appears that plaintiff was a widower, with married children living within a few miles of his home at Erie, a very small village in Cass county. He is 71 years of age, and the defendant is about 46 years of age. The plaintiff is a farmer apparently accustomed to living economically, but it does not appear that he was parsimonious to any greater extent than thrifty, saving farmers usually are. His residence was very comfortably furnished, and he appears to have provided the necessaries of life, and the defendant's claim that he did not do so arises from his failure to obtain items for household consumption which she requested him to procure on different occasions, on some of which his failure was by reason of inability to procure them at Erie, where they resided. On one or two occasions when she requested certain articles to be procured, he suggested that she might be able to use something else as a substitute. The defendant is a nurse by profession, and married the plaintiff about two months after their first meeting, she having been the one to solicit an introduction, and having been twice before married. Testimony is introduced showing that before promising to marry the plaintiff she desired to know what provision he would make for her in a financial way, and that she told different people that she had worked long enough, and wanted a home, and was willing to marry any one to secure it, and preferred an old man to a young man, and that she most certainly would not have married him if he had had no money. One of the witnesses testified that she told her that she preferred to marry an old man, because she would probably get the property sooner, and that after marriage she contemplated separation, and procuring a settlement of the property in her favor. After separation came by her leaving him, she had her attorney write immediately to the plaintiff, soliciting an arrangement for a division of the property. From the evidence on this branch of the case, it appears that her desire to acquire property was an important factor in the marriage. They lived together some time over one year, during which time she repeatedly threatened to leave him, and the evidence indicates that she was planning to cause the plaintiff, by her aggravating conduct, to so far forget himself as to turn her out of doors, thereby laying the ground for an action of divorce in her own favor.

The plaintiff was a religious man, had been a church member for 35 years, and did not tolerate profanity or vulgarity in his family. One of the principal charges against the defendant was that she was very profane in her conversation in the presence of the plaintiff, and sometimes of third parties, and that she repeatedly told in his presence, and in the presence of his children, obscene stories, some of which are related by witnesses, and it is charged that these were the cause of grievous mental suffering on the part of the plaintiff, and the trial court so found. We cannot assume that the finding of the trial court is erroneous in the absence of evidence to the contrary. Whether the telling of obscene stories and the use of profanity by the wife in the presence of the husband and others is the cause of grievous mental suffering on the part of the husband depends very largely upon the temperament, religious training, and characteristics of the man, and his degree of sensitiveness to such improprieties. We can imagine a man whose moral nature may be so inactive as to render such conduct on the part of the wife inoffensive, but we think a great majority of men would be humiliated and chagrined by such conduct, which would cause in most cases more grievous mental suffering than other acts more violent in their nature. The evidence on this subject, taken as a whole, we think clearly indicates that it had the effect on the plaintiff which might be expected in a man of ordinary sensibilities and of a high standard of propriety. No general rule can be laid down on this subject, but each case where charges of this nature are made must be governed by its own peculiar facts.

Many other acts are shown to have been committed by the defendant, some of them trifling, and the most of them so, but occurring as they did, at short intervals, in the way they did, they constitute a continuous course of conduct intended to aggravate and annoy the plaintiff. We shall not enter into details regarding these acts, as to do so would serve no purpose, and it is sufficient to say that, taken together, we are of the opinion that they war-wanted the judgment of the trial court. There is no issue of the marriage. The plaintiff, so far as the records disclose, was patient and considerate to a high degree. The fault-findings, threatenings, and complaints of the defendant seldom brought any retort from him.

The defendant claims that the charges made against her by the plaintiff entitle her to a decree. To this we cannot agree. The allegations of the answer state these much stronger than the evidence supports. Whatever the plaintiff may have said, seeming to reflect upon the defendant in this respect, was occasioned by her own conduct. There is no evidence in the case establishing that she was guilty of unfaithfulness, but there is evidence of indiscretion, and a kind of brazen delight on her part in doing and saying things, not only wanting in propriety, but highly improper, and we are of the opinion that the record contains enough such evidence to bring this case within the rule established by this court in McAllister v. McAllister, 7 N.D. 324, 75 N.W. 256, to the effect that, her own conduct being the cause of any statement or insinuation on the part of the plaintiff reflecting upon her, such statements, even if made by the husband, do not constitute a ground for divorce. It is further contended by the defendant that the record shows condonation by the plaintiff. Some time prior to the final separation they met at the residence of a relative in Wheatland, and each party stated his or her version of their troubles in the presence of others, and, after spending some hours in their consideration, they were advised to start anew, and it is claimed that this constituted condonation. Section 4061, Rev. Codes 1905, reads: "Condonation is revoked and the original cause of divorce revived: (1) When the condonee commits acts constituting a like or other cause for divorce; or, (2) when the condonee is guilty of great conjugal unkindness, not amounting to cause of divorce, but sufficiently habitual to show that the conditions of condonation had not been accepted in good faith or not fulfilled." If there was at this time a condonation, and it is not clear that there was, the record shows that almost immediately the defendant resumed her former course of conduct towards the plaintiff, and thereby revoked the condonation, and revived the original cause for divorce. Taylor v. Taylor, 5 N.D. 58, 63 N.W. 893.

The printed evidence in this case occupies over 300 pages. Considerable of it is immaterial, and of a frivolous character, which would not be offered in any case except one involving a family quarrel. It would serve no purpose to set it out in this opinion.

It cannot be expected that either party will be absolutely spotless. The day is past when the court holds to any such doctrine. It is beyond the possibilities of...