Pacquin v. Pacquin

• Decision Date: 05 October 1965
• Docket Number: No. 987,987
• Citation: Pacquin v. Pacquin, 125 Vt. 243, 214 A.2d 90 (Vt. 1965)
• Parties: Solange T. PACQUIN v. Etienne G. PACQUIN.
• Court: Vermont Supreme Court

Page 90

214 A.2d 90

125 Vt. 243

Solange T. PACQUIN v. Etienne G. PACQUIN.

No. 987.

Supreme Court of Vermont.

Oct. 5, 1965.

Andrew G. Pepin, Newport, for libellant.

Lee E. Emerson, Barton, for libellee.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

SMITH, Justice.

This is an action of divorce brought on the grounds of intolerable severity. Libellee filed a cross-libel based on the ground of intolerable severity and adultery. Hearing was held in the Orleans County Court July 8, 1964. Findings of Fact were filed on October 27, 1964. A Decretal Order was filed on November 4, 1964, dismissing the cross-libel and 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 exception to certain findings of fact by the lower court and claimed failure to find in accordance with requests to find made by the libellee.

The Findings of Fact disclose that the parties were married in Troy, Vt., on May 12, 1942. While the parties lived in Connecticut in the first three years of the marriage, since that time they have lived in Orleans County on a farm purchased by them. Four children were born of the marriage but only the custody of the youngest of said children, Diane, age 13 at the time of hearing, was disputed in the divorce action below. The findings were that both parties worked diligently in the farm operation.

However, for the period of the last seven years, marital discord increased between the parties, culminating in the libellant leaving the premises in October of 1963, and the bringing of the divorce libel and cross-libel.

The trial below was bitterly contested and the evidence of the parties and their respective witnesses was in direct opposition on many of the questions of fact presented. The decretal order of the lower court dismissed the cross-libel of the libellee, granted a decree of divorce to the libellant on the grounds of intolerable severity, awarded her the custody of the daughter, Diane, with an order for the libellee to pay libellant the sum of $22.50 per week for the support of said child, and ordered the libellee to pay the libellant the sum of $7500, payable in installments, for her equity in the home farm.

We think that both for brevity and clarity, the numerous exceptions of the libellee both to failure to find, as well as to the findings made, can be variously grouped for our consideration as they are related to certain broad issues of the case below, astreated by the lower court, and to which treatment the objections of the libellee are really directed.

The first such issue was the matter of the conduct of the libellee which libellant claimed to constitute intolerable severity toward her, and which she testified, and the court found, impaired her health. Such intolerable severity was produced, so the libellant and her witnesses testified, because of the bad temper of the libellee. Much of the evidence offered had to do with the libellee's acts in beating various animals about the farm, at times to death, which acts, said the libellant, were protested by her, and when continued caused her great mental distress.

The finding requested by the libellee from the lower court was '3. Cruelty to animals, if such cruelty is found to exist, is not cause for divorce on the grounds of intolerable severity.' While we might agree with libellee that cruelty to animals, however reprehensible, taken alone is not a cause for divorce on the grounds of intolerable severity, this was not the claim of the libellant. Her contention was that such cruel treatment of the animals by the libellee, in her presence and over her objections, was behavior on his part that caused her mental and physical distress. Such behavior of the libellee, in and of itself, was not alleged to be intolerable severity, but the effect of such behavior on the health of the libellant was so claimed to be.

As was said in Whitehead v. Whitehead, 84 Vt. 321, 322, 79 A. 516, 517, 'Intolerable severity may be established in divorce proceedings by proof of any line of misconduct persisted in by the offending party to such an extent as to cause or threaten injury to the life, limb or health of the other, and it is not necessary that such injury, actual or threatened, should be the direct result of such misconduct, but that it is sufficient if it is produced by grief, worry, or mental distress occasioned thereby.'

It takes no great imagination to think of many instances where the misconduct of a spouse toward others than his matrimonial partner, over her protests, could produce grief, worry or mental distress in such partner, although the misconduct was not specifically directed at her. It is sufficient if the misconduct complained of, even if directed toward other than the libellant in person, persisted in over her objections, is the cause of the injury to health which she seeks to establish as proof of intolerable severity.

The requested finding of the libellee was properly rejected by the court below. Its inclusion would have been immaterial to the questions presented.

What we have just said is also applicable to Finding No. 6, to which libellee excepted. This is a finding by the court that the libellee had a generally bad temper, that he beat the farm animals and that such beating caused mental distress to the libellant. There is ample evidence to support this finding, and it was a material finding on the matter of the intolerable severity claimed by the libellant by reason of what already has been said.

The next exception by the libellee is to the court's refusal to find in his compliance with his request No. 5, 'The libellant is possessed of an adulterous disposition.' We consider the question raised together with the libellee's exception to Finding No. 11, 'No evidence of adultery on the part of the libellant is found.'

The evidence of the libellee was that the libellant had, at times, hugged and kissed young men who had been employed about the farm. Both the libellant and the young men in question testified that such demonstration of affection had occurred only when the libellant was distraught and crying, and were mere expressions of sympathy. While one of libellee's witnesses testified that he saw libellant go into a bedroom occupied by one of these boys, and later heard the bed squeaking, on cross-examination he admitted that he was not certain that both parties were in the room as he had first claimed. The libellant and the young men all denied that any adultery, or conduct that might have culminated in adultery, had taken place between the libellant or any of them. We do not weigh the evidence since its persuasive effect and the credibility of the witnesses are for the trier of facts to determine. Davis v. Kneeland Lumber Co., 124 Vt. 70, 196 A.2d 572; Crossman v. Crossman, 124 Vt. 127, 129, 197 A.2d 818.

In view of the conflicting testimony in the case below, we cannot say that the lower court was in error in refusing to find that the libellant had an adulterous disposition, nor do we find that there was such clear and conclusive testimony given below as to constitute a finding of adultery. Although there was some evidence as to adultery before the lower court, the meaning of the finding seems to be that the trial judge did not find its weight and sufficiency to be such as would support the finding requested. Such determination was for the trial court and is not for revision here. Raymond v. Raymond, 120 Vt. 87, 90, 132 A.2d 427.

Libellee's next exception is to the lower court's refusal to find in compliance with request to find, No. 8, reading: 'The child, Diane, is being brought up in an immoral atmosphere.' Involving the same subject matter of the custody of Diane are other exceptions of the libellee. Exception is taken to the lower court's failure to find in compliance with libellee's request No. 10: 'The child Diane weas so young as not to know the meaning of an oath, and her testimony about the parent she wanted to stay with should be disregarded because not under oath.' Exception is also taken to Finding No. 21: 'The best interests of the child, Diane, will be served by leaving...