Piner v. Piner, 4190
| Decision Date | 26 June 1973 |
| Docket Number | No. 4190,4190 |
| Citation | 511 P.2d 94 |
| Parties | Esther J. PINER, Appellant (Defendant below), v. Norman R. PINER, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
Joe R. Wilmetti, Rock Springs, for appellant.
Lawrence A. Marty, of Marty & Clark, Green River, for appellee.
Before PARKER, C. J., and McEWAN, GUTHRIE and McINTYRE, JJ.
Esther J. Piner (wife) sued her husband, Norman R. Piner, for separate maintenance. The husband then sued for divorce and the cases were consolidated for trial. After trial, a decree of divorce was granted to the husband on his petition therefor and separate maintenance, as prayed for by the wife, was denied. The wife has appealed.
Claims on appeal are (1) that the husband's evidence was insufficient to establish grounds for divorce; and (2) that the divorce should have been denied on account of 'equal' fault. As we view the evidence, the trial court was justified in its finding of grounds for a divorce and in its finding that fault on the part of the husband was not such as to defeat his divorce.
Appellant concedes the evidence shows that the wife fought with her husband; and that such fights became physically violent. She argues, however, that the cause of the fights was the husband's extra-marital activities. Appellant then asks, 'Does fighting back on the part of a wife by arguing and even physically fighting in an attempt to stop a husband from carrying on an affair with other women constitute an indignity against the husband by the wife?'
If appellant's attorney would pause to reflect on this question, he would realize it is primarily one for the trial court, to be decided according to the circumstances of the particular case. And, of course, the appellate court must assume that the evidence in favor of the successful party is true, leave out of consideration entirely the evidence of the unsuccessful party in conflict therewith, and give to the evidence of the successful party every favorable inference which may be reasonably and fairly drawn from it.
The case is quite similar to the one which was involved in Steere v. Steere, 72 Wyo. 501, 267 P.2d 750, 753. In that case, as in this one, it was contended the testimony was insufficient to sustain the charge of indignities. The court pointed out that it would serve no good purpose to review the evidence; that it was conflicting; and that the husband's testimony was not inherently improbable. There was said to be ample testimony in the case to show that the husband was very much troubled by reason of the conduct of the wife.
In this case the evidence shows the wife was continually harrassing her husband with accusations of infidelity; that she was spying on him and attacking him violently in public with actual physical injury; and that the wife's embitterment toward her husband reached the point that she sued for separate maintenance. The trial court would have had no difficulty in believing the wife's conduct caused the husband embarrassment and humiliation and generally rendered his condition of marriage intolerable.
As far as the husband's grounds for divorce are concerned, they were amply proved and we will not disturb the findings of the trial court in that regard.
Our statutory directive relative to recrimination is in § 20-55, W.S.1957. It provides:
'No divorce shall be decreed in any case where * * * the party complaining shall be guilty of the same crime or misconduct charged against the defendant.'
There are several principles to have in mind as we consider the matter of equal guilt. One of those principles is an awareness that our statutory directive is to trial judges. It specifies a situation under which no divorce 'shall be decreed.' Whether that situation prevails or not is of course for the trial judge to decide. If there is a reasonable basis for his determination, it must be disturbed. 1
Also, § 20-55 has to do with 'the same crime or misconduct' charged against the defendant. In this case the husband has charged no crime against the wife, and the court was justified in finding no crime was proved against the husband. Concerning the same misconduct, it is apparent a matter of degree or extent of guilt is involved. If fault is great on one side and slight on the other side, it can hardly be said the misconduct is 'the same.'
It is not necessary for a complainant to be entirely blameless in order to be entitled to a divorce. Boschetto v. Boschetto, Wyo., 343 P.2d 503, 505. In the Boschetto opinion our court agreed the complainant was probably not altogether above reproach. That is seldom true, the court said, and recognition was given to the fact that the wrecking of a marriage is almost always due to fault on both sides.
Since the district court in this instance granted a divorce to the husband, it must have believed sufficient recrimination did not exist for denial of a decree. We are aware that in some jurisdictions the courts have even gone so far...
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