Murray v. Murray

• Decision Date: 15 March 1951
• Docket Number: No. 31553,31553
• Citation: 229 P.2d 309,38 Wn.2d 269
• Parties: MURRAY, v. MURRAY.
• Court: Washington Supreme Court

Page 269

38 Wn.2d 269

229 P.2d 309

MURRAY, v. MURRAY.

No. 31553.

Supreme Court of Washington, Department 2.

March 15, 1951.

Ralph Purvis, James B. Sanchez, Bremerton, for appellant.

Ray R. Greenwood, Frank A. Shiers, Port Orchard, for respondent.

HAMLEY, Justice.

Plaintiff sued for divorce on the grounds of cruelty and personal indignities rendering life burdensome. Defendant denied the allegations of the complaint and, by way of affirmative defense, pleaded condonation. The trial court granted the divorce. Defendant has appealed. Counsel for appellant did not participate in the oral argument before this court.

Appellant first contends that the findings of fact to the effect that appellant had been guilty of cruel treatment to respondent since May, 1949, and that appellant had not given up the habit of excessive use of intoxicating liquor since that date, are not supported by the evidence. It was in May, 1949, that appellant had ceased a two-and-a-half-year period of idleness and began operating a tavern which the parties had purchased.

Respondent testified that, since the purchase of the tavern, appellant had been cold and uncivil and displayed no affection; that he had unjustifiably accused her of misconduct with his best friend; that he had threatened her life and threatened to take his own life; and that he had endeavored to coerce her into placing their four-year-old child in a nursery school so that she could become a barmaid in the tavern.

Respondent also testified that appellant's drinking continued up to the time the action was instituted, though to a considerably less extent than formerly. Respondent and appellant's mother, in the fall of 1949, tried to get appellant to 'take the cure,' but he refused to do so. Two witnesses told of appellant drinking at times, since May, 1949, when he had the little girl in his custody. The former bartender at the tavern testified that appellant drank whiskey at the tavern at various times since May, 1949, but that appellant did not become intoxicated. Another witness stated that she had seen appellant drinking in September, 1949. Both respondent and her mother testified that they had seen appellant under the influence of liquor on several occasions since he began operating the tavern.

Appellant disputed most of the testimony relative to cruelty and personal indignities, and offered explanations for some of his conduct. He admitted excessive drinking prior to May, 1949, but denied continuance of the habit after that date. He further testified that he had not touched liquor for seventy-one days immediately preceding the trial.

The evidence, taken as a whole, shows that appellant's conduct since May, 1949 had been considerably less blameworthy than during the preceding ten years of their married life. Nevertheless, as indicated above, there is evidence indicating some continuing acts of cruelty, personal indignities and excessive drinking since that time and prior to the institution of this action on December 10, 1949.

The trial court's findings of fact in divorce actions are entitled to great weight. Taylor v. Taylor, 8 Wash.2d 565, 113 P.2d 64; Sinnott v. Sinnott, 27 Wash.2d 520, 179 P.2d 305. This is particularly true where, as here, the determination of fact is largely dependent upon the relative credibility of witnesses who present conflicting testimony. Gillespie v. Gillespie, 26 Wash.2d 134, 173 P.2d 176. We are of the view that the findings of fact in question are supported by substantial evidence.

Appellant next contends that respondent condoned appellant's acts committed prior to May, 1949, by continuing to live and maintain normal marital relations with him for a period of months after that date.

In Averbuch v. Averbuch, 80 Wash. 257, 141 P. 701, we approved the following definition of the doctrine of condonation: '* * * Condonation is forgiveness with an implied condition that the injury shall not be repeated, and on breach of this condition the right to a remedy for former injuries revives (Greenleaf, Evidence [14th Ed.] § 53) * * *.' 80 Wash. at page 259, 141 P. at page 702.

Whether the words, acts, or course of conduct of the parties in a particular case constitute condonation is a question of fact. The burden is upon the party asserting that defense to establish condonation. McCallum v. McCallum 153 Wash. 1, 279 P. 88. Here respondent expressly denied that she had condoned appellant's prior acts or had forgiven him. She testified: 'I hadn't forgiven him, but I was trying to make a go of the marriage.'

Mere continuance or resumption of normal marital relations is usually sufficient to establish condonation, where the misconduct complained of consists of relatively isolated incidents of infidelity or cruelty. Johnsen v. Johnsen, 78 Wash. 423, 139 P. 189, 139 P. 1200; Rogers v. Rogers, 81 Wash. 502, 142 P. 1150; Prothero v. Prothero, 137 Wash. 349, 242 P. 1; Robinson v. Robinson, 23 Wash.2d 93, 159 P.2d 903.

Where, however, the criticized action consists of cruelty or personal indignities constituting a course of conduct over a long period of time, continuation of cohabitation is not necessarily proof of condonation. Quient v. Quient, 105 Wash. 315, 177 P. 779. The forbearance of the wife and her patience in enduring personal indignities and cruel treatment in the hope of her husband's reform and for the purpose of salvaging her marriage, or in the belief that such sacrifice is in the best interest of the children, should not be confounded with or construed as condonation or reconciliation. 14...