Pilgrim v. Pilgrim

• Decision Date: 24 October 1947
• Docket Number: 17629.
• Citation: 75 N.E.2d 159,118 Ind.App. 6
• Parties: PILGRIM v. PILGRIM.
• Court: Indiana Appellate Court

75 N.E.2d 159

118 Ind.App. 6

PILGRIM v. PILGRIM.

No. 17629.

Appellate Court of Indiana, in Banc.

October 24, 1947

Appeal from Wabash Circuit Court; Walter A. Bent, Judge.

C. W. H. Bangs, of Huntington, for appellant.

Howard E. Plummer, of Wabash, for appellee.

FLANAGAN Judge.

Appellee brought this action against appellant for divorce charging adultery and that he was not the father of a child born during the period of the marriage. Trial resulted in a decree in his favor.

The sole error assigned here is the overruling of appellant's motion for a new trial which contains twenty-one specifications.

Specifications numbered 8, 9, 10, 12, 13, 14, 15 and 21 are expressly waived. Specifications numbered 6, 11, 16 and 20 are waived by failure to cite authority. Specification numbered 5 is not supported by any proposition or point and is therefore waived. Rule 2-17, Rules of Supreme Court.

The evidence most favorable to appellee so far as it is pertinent to the issues presented by this appeal support the following facts:

The appellant and appellee were married on April 6, 1944. On April 24, 1944, appellee went over-seas as a member of the United States Army and remained outside the continental limits of the United States until December 8 1945. He was discharged from the army on December 14, 1945 and on the next day saw his wife for the first time since his departure in April, 1944. At some time about two months after his return his wife informed him that she thought she was pregnant. He took her to a doctor who said the baby was about four months gone. Appellee said it could not be four months gone and be his. Appellant started crying. Later the doctor said to appellant and appellee that the baby was coming in July. The parties continued to live together until the baby was born by Caesarean section on June 23, 1946. It was not less than a seven months baby. When appellant left the hospital she went to the home of her parents and appellee went to the home of his parents. They did not live or cohabit together thereafter although at several times they met and kissed and hugged each other and otherwise showed some tendency toward reconciliation. About a month after the baby was born appellant and appellee went to another doctor with the baby and were again informed that it could not be a six months baby. Upon leaving this doctor's office appellant informed appellee that in his absence she had had intercourse with another man. Later she made an affidavit in which she stated that she had had sexual relations with another man on four occasions in September and October, 1945, and that the child born to her was not the child of appellee.

Under its specifications numbered 1 and 2 appellant contends that appellee condoned any alleged acts of adultery on her part. She points to three items of evidence, (1) her own statement that she and appellee had intercourse after the baby was born and he had her statement admitting adultery, (2) his kisses and hugs and tendency toward reconciliation after the baby was born and he had her statement admitting adultery, and (3) his continuing to live with her after the doctor told him that the baby was four months along when he had been home only two months and after the doctor told him the baby would be born in July.

As to item above numbered (1) appellee denied having intercourse with appellant after the birth of the baby and we are bound to accept the evidence most favorable to him.

Item numbered (2) requires us to examine the question as to what constitutes condonation.

In the early case of Phillips v. Phillips, 4 Blackf. 131, our Supreme Court said that a divorce will not be granted 'if the complainant has forgiven the offense. This forgiveness may be either express or it may be implied from the fact of subsequent cohabitation after knowledge of the offence.'

In the case of Sullivan v. Sullivan, 34 Ind. 368, our Supreme Court defines condonation as 'the forgiveness, either express or implied by the husband of the wife or the wife of the husband, for a breach of marital duty.'

In the case of Burns v. Burns, 60 Ind. 259, our Supreme Court said:

'Condonation may be inferred from the facts of living and cohabiting by the injured party with the offender after knowledge of the offence. Cohabitation will be inferred, nothing appearing to the contrary, from the fact of the living together of husband and wife. We use the words 'cohabit' and 'cohabitation' as implying sexual intercourse.'

It is provided by statute that 'Divorces shall not be granted for adultery * * * when the party seeking the divorce has voluntarily cohabited with the other, with knowledge of the fact.' Burns Ann.St. § 3-1202.

There is no contention here that appellee expressly forgave appellant. The question is: Do kisses, hugs and a tendency toward reconciliation imply forgiveness?

It will be noted that both in the decisions and in the statute above noticed the only act referred to as implying forgiveness is the act of cohabitation. We have found no other case in this state suggesting the sufficiency of any other act. We think it has been the purpose of the law to so limit implied condonation. The reasons seem apparent. Recognizing the fact that the family unit is the basis upon which society is built it is always the policy of the law to encourage the reconciliation and reunion of a husband and wife. The objective and culmination of such reconciliation and reunion is the resumption of normal marital relations, living and cohabiting together as husband and wife. But to penalize one of the parties for entering into any of the steps leading to such culmination is to discourage the endeavor. The law will not so thwart its good purposes. The acts of the parties in this case in meeting, kissing, hugging and displaying tendencies toward reconciliation did not in our opinion constitute condonation on the part of appellee.

On the question of condonation there remains the third item pointed out by appellee. About two months after his return from the service appellee took appellant to a doctor who stated that appellant was about four months pregnant. To this appellee replied that it could not be and still be his baby. His wife cried. Later the doctor said the baby would be born in July. There is no question but that appellee continued to live and cohabit with appellant after these occurrences. But was the trial court bound to find that he did so with the knowledge that his wife had...