Reed v. Reed

• Decision Date: 16 February 1926
• Docket Number: Case Number: 16185
• Citation: 119 Okla. 5,1926 OK 152,246 P. 413
• Parties: REED v. REED.
• Court: Oklahoma Supreme Court

1926 OK 152

246 P. 413

119 Okla. 5

REED v. REED.

Case Number: 16185

Supreme Court of Oklahoma

Decided: February 16, 1926

Syllabus

¶0 1. Divorce -- Appeal -- Sufficiency of Evidence. In a divorce case, where the evidence is conflicting and there is sufficient competent evidence to support the findings of the court and the decree based thereon, the same will not be disturbed on appeal.

2. Divorce--Extreme Cruelty Other Than Physical Violence--Requisites. In an action for divorce, where the cause of action is predicated upon extreme cruelty, for conduct other than physical violence, it is not sufficient that there should simply be danger that such conduct, operating through the mental faculties, may produce injury or bodily hurt to the physical system, but it must be shown that such in fact is the effect, or at least that such effect is to be reasonably apprehended as imminent as a result thereof. The remedy for absolute divorce is an extraordinary remedy for evils which are unavoidable and unendurable and which cannot be relieved by any proper or reasonable exertion by the parties seeking the aid of the court.

3. Divorce--"Gross Neglect of Duty." Gross neglect of duty, within the meaning of section 501, C. O. S. 1921, is such a glaring, shameful, or monstrous neglect of marital duties as to be obvious from the common understanding and inexcusable under all the relevant facts in the case.

4. Divorce--Courts to Encourage Reconciliation. Marriage is a contract and a relation which, if possible, should endure, and public polity requires that there be no straining of law or facts to end the contract and sever the relation. Courts, having ever in view the public good, may often wisely use their discretion to give time and opportunity for reconciliation.

5. Same--Refusal to Settle Property Rights Where Prospect of Reconciliation. In a divorce action, where it appears that a reconciliation between the parties may occur and the defendant does not ask for a divorce, the action of the trial court, after refusing plaintiff a divorce, in refusing to settle the property rights between the parties will not be disturbed.

Cornelius Hardy, for plaintiff in error.

Robt. S. Kerr and J. F. McKeel, for defendant in error.

FOSTER, C.

¶1 The plaintiff in error, Lucille Reed, brought her action in the district court of Johnston county against the defendant in error, Elbert G. Reed, for an absolute divorce, the custody and control of plaintiff in error's minor son, for permanent alimony, and for a decree settling and adjusting certain property rights between the parties. The parties will be referred to hereinafter as plaintiff and defendant as they were designated in the trial court.

¶2 In her amended petition the plaintiff charged the defendant with extreme cruelty and gross neglect of duty. The answer of the defendant was a general and specific denial of the matters charged in the plaintiff's petition, and concluded with a prayer that as long as plaintiff lived separate and apart from the defendant, defendant be granted such custody of their minor child as the court should deem proper. No divorce on behalf of the defendant was asked for by reason of any fault or aggression of the plaintiff. The trial court entered a general judgment in favor of the defendant denying plaintiff any relief prayed for in her petition, and until the further order of the court awarded the custody of the minor son of the parties to the plaintiff from the 1st to the 22nd of each month, and to the defendant from the 23rd to the last day of the month. Motion for a new trial was filed by the plaintiff, heard and overruled, exceptions allowed, and the case comes on regularly to be heard in this court on appeal by the plaintiff from said judgment.

¶3 The first proposition relied on by the plaintiff for a reversal of the judgment is that the trial court erred in refusing to grant the plaintiff a divorce on the ground of cruelty. The record discloses that plaintiff and the defendant were married at Sulphur, Okla., on the 18th day of September, 1919; that of this marriage one child survives, namely, Marvin Elbert Reed, a son, who at the time of the trial on July 11, 1924, was about four years old; that plaintiff and defendant lived together as husband and wife in Ada, Okla., until the 22nd day of June, 1923, at which time the plaintiff returned to her parents at Tishomingo, where she resided continuously until the trial.

¶4 There is no conflict in the evidence that until the fall of 1921 the defendant conducted himself properly and was without fault. The plaintiff testified that about this time he began to be abusive toward plaintiff and neglectful of his marital duties, which finally culminated on June 22, 1923, in the defendant brandishing a pistol and threatening to kill some of her people and in cursing her and other members of her family; that during this time defendant frequently cursed in the presence of plaintiff and was guilty of a general course of cruel and inhuman conduct toward the plaintiff which rendered her condition intolerable. The record further discloses that when the parties married in 1919, the defendant was night mechanic employed by the Dodge Motor Company of Ada at a salary of $ 100 per month, and that he retained this position for some nine months thereafter. It appears that the defendant then engaged in the transfer business at Wichita Falls, Tex., for a while, finally closing out his business there and returning to Ada. He then acquired the ownership of a tailoring business in Ada, going in debt considerably therefor, and it was during the time that defendant was conducting the tailoring business that most of the difficulties between the parties arose. The tailoring business was not a success, and after the defendant had paid some $ 1.200 on the purchase price therefor, a mortgage was finally foreclosed, whereby his business was sold, leaving a deficiency judgment against him including attorneys' fees of some $ 400.

¶5 The defendant denied that he had ever been cruel to the plaintiff; denied that he had ever cursed her or used or threatened to use any physical violence whatever upon plaintiff, and testified that he had always conducted himself as a faithful husband should. The evidence discloses that from the time plaintiff and defendant married until their separation, plaintiff's mother was a frequent visitor in their home and that the plaintiff frequently visited her father and mother in Tishomingo. It was the defendant's theory that plaintiff's mother, aided by other members of her family, entered, soon after their marriage, upon a course of conduct designed to bring about the separation of plaintiff and defendant, and that the separation which finally took place was the result of such unlawful conduct upon the part of plaintiff's mother; that any violence threatened or profane language used by him was provoked by and directed to the members of plaintiff's family, who were conspiring together to wrest from him the custody and control of his minor son, and that in carrying out this conspiracy, on the 22nd day of June, 1923, while plaintiff was packing her personal effects and preparing to accompany her brother, Russell, to Tishomingo, defendant did take a pistol from the dresser drawer in the presence of his wife and a hired girl, saying that he would kill any of her "G d " people that tried to get the baby, and that this was the only profane language he ever used in the presence of his wife or any other woman. There is evidence in the record from a number of disinterested witnesses, that defendant, during the year immediately preceding the separation, was a devoted father and that he was kind and considerate to the plaintiff.

¶6 The trial court rendered a general judgment in favor of the defendant. While the evidence introduced was conflicting, it had before it the witnesses testifying for both sides, observed their demeanor on the stand, and after hearing and considering all of the evidence introduced, rendered its judgment in favor of the defendant, as stated. Whether from the conflicting evidence the trial court found, as a matter of fact, that defendant's testimony was true and that he had not been guilty of cruelty in any form, or whether it found, as a matter of law, that defendant could not be guilty even if the matters testified to by the plaintiff were true, its judgment must in either case be sustained.

¶7 The rule has been announced in a number of cases as follows:

"In a contested divorce case, where the evidence is conflicting, and there is sufficient competent evidence to support the findings of the court and the decree based thereon, the same will not be disturbed on appeal." Johnson v. Johnson, 72 Okla. 155, 179 P. 595; Stovall v. Stovall, 29 Okla. 125, 116 P. 791; Barker v. Barker, 99 Okla. 103, 218 P. 812; Large v. Large, 95 Okla. 284, 219 P. 292,

¶8 Furthermore, we are unable to find from plaintiff's own version of defendant's conduct and her own reactions therefrom, any evidence of that extreme type of cruelty mentioned in the statute, which would justify an absolute divorce under the rule announced by the authorities in this jurisdiction.

¶9 Testifying in her own behalf, the plaintiff testified as follows:

"Q. He never did call you any bad names? A. I suppose I was included in the Chapman family. Q. He never did say you were so and so? A. Only a liar. * * * Q. When was the first time (he drew a pistol on you)? A. First time he tried to was in February, 1922. Q. Was you scared of him? A. No. I was not scared of him. Q. Wasn't you afraid he was going to shoot you? A. No. sir; not a bit. I--never did run over me. Q. Was not afraid of him? A. No, sir; not a bit. * * * Q. You knew he was bluffing you? A. I knew he was not going to kill me. Q. You called his bluff. A. Yes, I did that because he threatened me too many times. * * * Q. When he drew this pistol, did he say he was going to shoot you? A. No, sir; he just drew

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