Peterson v. Peterson

• Decision Date: 15 August 1946
• Docket Number: 8835,8852.
• Citation: 24 N.W.2d 35,71 S.D. 314
• Parties: PETERSON v. PETERSON.
• Court: South Dakota Supreme Court

24 N.W.2d 35

71 S.D. 314

PETERSON v. PETERSON.

Nos. 8835, 8852.

Supreme Court of South Dakota

August 15, 1946

T. R. Johnson, of Sioux Falls, for respondent.

Henry C. Mundt, of Sioux Falls, for appellant.

PUCKETT Circuit Judge.

This action was instituted by the plaintiff, Wiebe C. Peterson, against her husband, Merle R. Peterson, for an absolute divorce alleging cruelty. She also asked for a division of property. The defendant answered denying the claims of his wife, and filed a cross-complaint in which he alleged cruelty. He also asked for a divorce and that all of the property be awarded to him. The action was started in May, 1944, and was tried in April, 1945. At the conclusion of the trial the court awarded a divorce to the plaintiff and out of property in the husband's name, set aside to her residence property valued at $4,750; household furniture and fixtures valued at $1,800; cash $2,250, or a total of $8,800. The defendant estimated he was worth $22,622.50 at the time of the trial but the court found his property to be worth at least $25,000. The property consisted principally of real estate bonds and cash. The plaintiff had approximately $1,000 in cash and war bonds.

The case was bitterly contested, there being a sharp conflict in the testimony relative to the alleged misconduct of both parties. The record is voluminous, consisting of several thousand pages of transcript and settled record. Out of the mass of chaff the following facts may be gleaned.

The parties were married December 6, 1926. At the time of their marriage the defendant was 25 years old and the plaintiff was 21 years old. They lived in Sioux Falls all of their married life. The couple was childless. Mr. Peterson has been employed by Farley Loetscher Co. since he was 16 years old; at the time of the trial his earnings as such employee amounted to in excess of $2,500 annually. The plaintiff spent most of her life as a housewife, occasionally working as a saleslady during rush seasons in stores. At the time of the trial she was employed at the airbase in Sioux Falls at a salary of $146 per month, gross; after deduction for retirement fund, war bonds, income tax, etc., the net amount was $102 per month.

At the trial testimony introduced on behalf of the plaintiff was that immediately before the commencement of the action defendant had slapped plaintiff in the mouth bruising and cutting her lip; that on another occasion he had twisted her wrist in an effort to obtain a letter plaintiff had from a relative; that on a number of occasions defendant had told plaintiff she was not a desirable wife and could leave whenever she wished; that he had told her she looked like a Chester White hog and was too fat and undesirable; that she was just sticking around for a meal ticket; that he objected to plaintiff's mother and was disagreeable in the home and embarrassed and injured plaintiff's feelings. All of these things were denied by defendant. He claimed the fault was all in the plaintiff and that she had numerous clandestine love affairs with other men.

Out of this mass of conflicting evidence the trial court was faced with the unpleasant duty of determining who was telling the truth and who was not. The court found as a fact that the plaintiff had proved facts sufficient to constitute extreme cruelty on the part of the husband and that her conduct at no time was such as to give defendant grounds for divorce.

Defendant assigns as error the trial court's findings of fact and conclusions of law in favor of plaintiff and insists that the court erred in not adopting defendant's proposed findings and conclusions in his favor. In order to sustain defendant's position it would be necessary for this court to hold that the plaintiff and her corroborating witnesses were not telling the truth and that the defendant and his witnesses were truthful. We have examined the voluminous record and find there is an abundance of testimony, if believed, to sustain the findings of the trial court. This court has consistently held in numerous cases that: 'Where there is a conflict of evidence, and no clear preponderance of evidence against the findings of the trial court, its findings will not be disturbed by this court.' Housman v. Housman, 55 S.D. 548, 226 N.W. 755, 756; Habeck v. Habeck, 51 S.D. 455, 214 N.W. 846; Fargo v. Fargo, 47 S.D. 289, 198 N.W. 355, and case cited therein. The logic and soundness of such holding is for the obvious reason that the trial court had the parties and witnesses before him and could observe their demeanor while testifying and was in better position to weight the evidence than is this court with only the printed record.

While it is true that plaintiff was indiscreet in some of her actions a careful analysis of defendant's testimony shows that the allegations of his cross-complaint were based upon suspicion. In any event the claimed misconduct of his wife was condoned by the defendant.

Appellant further contends that the trial court erred in the division of the property and that such division was unjust and inequitable. It is significant that the defendant also sought a divorce and in his prayer for relief asked the...