Putnam v. Putnam
| Decision Date | 02 December 1929 |
| Docket Number | 6503. |
| Citation | 282 P. 855,86 Mont. 135 |
| Parties | PUTNAM v. PUTNAM. |
| Court | Montana Supreme Court |
Appeal from District Court, Toole County; W. H. Meigs, Judge.
Action for divorce by Orville M. Putnam against Lulu M. Putnam, in which defendant filed a cross-complaint. From a judgment for plaintiff, defendant appeals. Reversed, with directions.
T. H MacDonald, of Helena, and W. M. Black, of Shelby, for appellant.
Harris & Hoyt, of Shelby, for respondent.
This is an action for divorce. Plaintiff's first cause of action is based upon cruelty; the second upon desertion. Defendant's answer consists of denials and explanations. She interposed a cross-complaint, charging plaintiff with desertion, asking for separate maintenance. The court found for the plaintiff, granted him a decree of divorce, denied defendant separate maintenance. Defendant appealed.
The specifications of error are that the court erred in overruling defendant's demurrer to the complaint and each of the causes thereof, in overruling defendant's objection to the introduction of any evidence under the complaint, in finding that the plaintiff left the home on or about the 1st of August, 1926, in finding defendant guilty of extreme cruelty toward the plaintiff, and in finding that the defendant deserted the plaintiff.
1. In the first cause of action, after setting forth the marriage of the parties, plaintiff's residence in the state for more than one year, that the children of the union were of age and married, plaintiff alleged that for more than five years last past prior to the commencement of the action defendant had been guilty of extreme cruelty towards him that about the month of May, 1925, and at numerous times since then, defendant accused him of harboring, supporting and cohabiting with another woman, "which accusation is false and without any foundation whatever, all of which caused plaintiff great anguish of mind and grievous mental suffering;" that in June, 1926, without cause or justification, she kicked, scratched, and slapped him in a vicious manner; that in or about the month of March, 1927, and on numerous occasions since, defendant had accused him of buying an automobile for another woman, which accusations were false; that defendant repeatedly during all of that period and at all times manifested no interest whatever in, and in fact showed an utter disregard of, plaintiff's financial success and welfare, but, on the contrary, aided others in an attempt to deprive plaintiff of property worth $10,000; that defendant repeatedly remarked that she had just as well spend plaintiff's money, because if she did not he would lavish it on other women, all of which was false; that during all of that period defendant humiliated and belittled plaintiff by remarking that he should be working in a ditch where he belonged, and further asserted that he was no good and was crooked and unfaithful to his marriage vows, all of which was wholly false and untrue; that she treated plaintiff with contempt in the presence of others and sought to humiliate him in the presence of his friends; that she accused him of gambling, which was false; that the defendant perpetually nagged, annoyed, and abused the plaintiff during said period, and treated him in a cold, abusive, and scornful manner, showed a settled aversion and contempt for him, and, by the acts above mentioned, and other acts, and by her conduct and attitude towards him during said period, inflicted grievous mental suffering upon the plaintiff by a course of conduct towards and treatment of him existing and persisted in for more than five years next immediately preceding the commencement of this action, which was justly and reasonably of such a nature and character as to destroy, and had destroyed, the peace of mind and happiness of the plaintiff, and to defeat, and had defeated, the proper and legitimate objects of marriage, and had rendered a continuance of the marriage relation perpetually unreasonable and intolerable to plaintiff.
Section 5738, Rev. Codes 1921, defines extreme cruelty as "the infliction, or threat of grievous bodily injury, or of bodily injury dangerous to life, or the repeated infliction or threat of bodily injury or personal violence upon the other party by one party to the marriage, or the repeated publication or utterance of false charges against the chastity of the wife by the husband, or the infliction of grievous mental suffering upon the other by one party to the marriage, by a course of conduct towards or treatment of one party to the marriage by the other, existing and persisted in for a period of one year immediately before the commencement of the action for divorce, which justly and reasonably is of such a nature and character as so to destroy the peace of mind and happiness of the injured party, or entirely to defeat the proper and legitimate objects of marriage, or to render the continuance of the married relation between the parties perpetually unreasonable or intolerable to the injured party."
Analyzing this section, it is seen that cruelty may consist of (a) the infliction or threat of grievous bodily injury or of bodily injury dangerous to life, or the repeated infliction or threat of bodily injury or personal violence upon the other party to the marriage; or (b) where the wife is the plaintiff, the repeated publication or utterance of false charges against her chastity by the husband; or (c) the infliction of grievous mental suffering as defined in the statute. We shall refer to division (c) hereafter under the head of "grievous mental suffering."
The repeated publication or utterance of false charges against the chastity of the wife by the husband constitutes a ground for divorce on part of the wife. The reason underlying the statute is apparent. In Morris v. Morris, 57 Wash. 465, 107 P. 186, Mr. Justice Dunbar observed that "one has the faintest conception of human nature who supposes that harsh and cruel treatment or personal indignities are confined to physical assaults," recognizing the fact that to a sensitive wife continual charges of unchastity may "constitute a cruelty compared with which the most brutal physical assault would be a soothing balm." The statute does not give the husband a right of action upon this ground, but that repeated false, unfounded and malicious accusations by the wife charging the husband with marital infidelity may inflict grievous mental suffering upon him should be clear without the citation of authorities. However, see MacDonald v. MacDonald, 155 Cal. 665, 102 P. 927, 25 L. R. A. (N. S.) 45; Miller v. Miller, 89 Neb. 239, 131 N.W. 203, 34 L. R. A. (N. S.) 360; Waldhorn v. Waldhorn, 165 Mich. 130, 130 N.W. 199. In his recitation of the acts alleged to constitute cruelty, plaintiff did not employ the word "maliciously," although he did set forth that the accusations made by the wife were false and unfounded. But the context necessarily implies that the accusations were made in malice. The word "malice" imports a wish to vex, annoy, or injure another person. Section 10713, Rev. Codes 1921.
The complaint sets forth a recitation of actions by the wife against the husband which are amply sufficient to satisfy the requirement of the statute respecting the infliction of grievous mental suffering. Among these continuous nagging is alleged. "Continuous nagging of one spouse by the other may constitute cruelty giving grounds for divorce, even though the motives of the offending spouse were good, since nagging from good motives may be just as hurtful as nagging from any other kind of motive." 9 Cal. Jur. 656, citing Barngrover v. Barngrover, 57 Cal.App. 43, 206 P. 461. But, if impelled by bad motives, nagging may easily come within the scriptural aphorism: "It is better to dwell in a corner of the housetop than with a brawling woman in a wide house." Proverbs, 21, 9.
In Wilkinson v. Wilkinson, 159 Ga. 332, 125 S.E. 856, 859, Mr. Justice Hill indulges in this rhetorical flight:
The first cause of action upon its face is sufficient.
2. The same matter is set forth in the second cause of action followed by allegations that, by reason of defendant's cruelty toward him, plaintiff was compelled to depart from the family dwelling place more than one year prior to the commencement of the action; that her treatment of him has been such as to render it impossible for him to continue to live with her; that defendant never at any time has sought a reconciliation or attempted to induce the plaintiff to return and resume marital relations.
Willful desertion is the voluntary separation of one of the married parties from the other with intent to desert. Section 5739, Rev. Codes 1921. Departure or absence of one party from the family dwelling place because of cruelty or bodily harm from which danger would be reasonably apprehended from the other is not desertion by the absent party, but is desertion by the other party. Section 5740, Id. Willful desertion must continue for one year before there is ground for divorce. Section 5749, Id.
It is argued by counsel for the defendant that cruelty which is the result of the infliction of grievous mental suffering upon the other by one party to the marriage is...
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