Olson v. Olson

• Decision Date: 21 March 1929
• Docket Number: 5041
• Citation: 47 Idaho 374,276 P. 34
• Parties: DOLLIE OLSON, Appellant, v. SVEN OLSON, Respondent
• Court: Idaho Supreme Court

276 P. 34

47 Idaho 374

DOLLIE OLSON, Appellant, v. SVEN OLSON, Respondent

No. 5041

Supreme Court of Idaho

March 21, 1929

DIVORCE - CRUELTY - EVIDENCE - CORROBORATION - CONFLICT - FINDINGS-CONDONATION-REVIVAL OF OFFENSE-CUSTODY OF CHILDREN-DISCRETION OF TRIAL COURT.

1. The law authorizes the trial judge, who observes the demeanor of witnesses and hears them testify, rather than reviewing court, to pass on weight of evidence.

2. Where evidence is sufficient to sustain findings, they will not be disturbed even though evidence is conflicting.

3. Where one spouse forgives marital offense of the other, there is at least implied condition that condoned offense will not be repeated, and such condoned offense is revived by repetition thereof.

4. Though divorce cannot be granted on uncorroborated statement admissions or testimony of parties, under C. S., sec. 4641 slight evidence of corroboration as to cruelty will suffice where it is evident that there was no collusion between parties.

5. In determining custody of child in divorce case under C. S sec. 4643, welfare of child is matter of primary importance, irrespective of wishes of parents.

6. Appellate court will set aside award of custody of child of divorced parents only where trial court has manifestly abused its discretion.

7. Awarding custody of child of tender years to its father rather than its mother in divorce case, under C. S., sec. 4643, on evidence that father was better fitted to care for and educate it, does not constitute abuse of discretion authorizing appellate court to interfere.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Clinton H. Hartson, Judge.

Action for divorce. Judgment for defendant. Affirmed.

Affirmed.

Wm. B. Davidson and Barber & Barber, for Appellant.

"Another weakness in the armour of plaintiff is his entire, or practically entire, lack of corroboration. Under no circumstances must a divorce be granted on the uncorroborated testimony of the plaintiff." (C. S., sec. 4641; McDonald v. McDonald, 155 Cal. 665, 102 P. 927, 25 L. R. A., N. S., 45, note.)

One case says: "There is no attempted corroboration save by the son and sister of plaintiff, and their attempts are so evidently prejudiced as to challenge the integrity of their statements. The evidence of children and parties in interest should be carefully considered and should itself be supported by corroborating circumstances." (Crowner v. Crowner, 44 Mich. 180, 38 Am. Rep. 245, 6 N.W. 198.)

The alleged and pretended admissions and confessions of appellant, if true, do not amount to corroboration under the express terms of the statute itself, which says inter alia:

"No divorce can be granted . . . . upon the uncorroborated statement, admission or testimony of the parties. . . ." (C. S., sec. 4641; Bell v. Bell, 15 Idaho 7-22, 96 P. 196.)

L. W. Tennyson, for Respondent.

"When the ground of the divorce is extreme cruelty it is frequently impossible to obtain corroboration of the specific acts of cruelty alleged, but in such cases there may be evidence of other facts that furnish a degree of corroboration sufficient to meet the requirements of the statute. The court had the right to consider all facts and circumstances in evidence, outside of the testimony and admissions of the parties, that threw any light on the conduct of the appellant toward the respondent in determining whether or not the testimony of the respondent was sufficiently corroborated." (Reubelmann v. Reubelmann, 38 Idaho 159, 220 P. 404; De Cloedt v. De Cloedt, 24 Idaho 277, 133 P. 664; Donaldson v. Donaldson, 31 Idaho 180, 170 P. 94; 19 C. J., Divorce, sec. 349.)

Corroboration of mental suffering is afforded by evidence showing the nature and circumstances of the acts complained of considered in the light of all the circumstances of the case, including the character, temperament and disposition of the parties. (McDonald v. McDonald, 155 Cal. 665, 102 P. 927, 25 L. R. A., N. S., 45.)

A repetition of the offense after condonation revives the former acts and permits a divorce upon the ground of all acts of cruelty, either before or after the reconciliation, and an offense which has been condoned may be revived not only by a repetition of the same offense, but also by the subsequent commission of other marital offenses. (19 C. J., Divorce, secs. 204, 205; C. S., sec. 4637.)

The question as to the disposition of children in divorce actions is in the first instance committed to the discretion of the trial court, and unless such discretion is abused, the judgment will not be disturbed. (Donaldson v. Donaldson, 31 Idaho 180, 170 P. 94; C. S., sec. 4643.)

WM. E. LEE, J. Budge, C. J., and Givens and Varian, JJ., concur.

OPINION

WM. E. LEE, J.

From a decree awarding respondent a divorce, the custody of his minor son, Donald Lee Olson, and an equal division of certain real property, this appeal is prosecuted.

A divorce was sought by each of the parties on the ground of extreme cruelty; the custody of the child was demanded by each on the ground of his fitness therefor and the other's unfitness; and each claimed a share in the community property. From the careful examination we have made of the entire record, it is our conclusion that the evidence is sufficient to sustain the findings. That there is a decided conflict cannot be denied. In fact, the argument of counsel is directed to the weight rather than the absence of evidence. The trial judge observes the demeanor of the witnesses and hears them testify. The law authorizes him, rather than us, to pass on the weight of the evidence; and it is well settled that, although the evidence is conflicting, where it is sufficient to sustain the findings, they will not be disturbed. (Morrison v. Morrison, 38 Idaho 45, 221 P. 156; Davenport v. Burke, 30 Idaho 599, 167 P. 481.)

The evidence in support of the respondent's cause of action covered a period of several months, and it is contended that, because the parties lived together after certain of the happenings, there was a condonation of the former acts, and evidence with respect thereto was inadmissible. This contention is without merit. When one spouse forgives a marital offense of the other, there is at least an implied condition that the condoned offense will not be repeated; and such condoned offense is revived by a repetition thereof. The commission of the subsequent acts of cruelty by the wife revived her former acts of cruelty, and evidence thereof was admissible. (9 R. C. L., Divorce and Separation, sec. 177; 19 C. J., Divorce, secs. 204, 205; Kostachek v. Kostachek, 40 Okla. 747, 140 P. 1021.)

The point is made that the evidence of cruelty was without corroboration. It was said in Donaldson v. Donaldson, 31 Idaho 180, 170 P. 94, that:

"No definite rule as to the degree of corroboration required can be laid down, and each case must be decided according to its own facts." (Bell v. Bell, 15 Idaho 7, 96 P. 196; De Cloedt v. De Cloedt, 24...