Roberts v. Roberts
| Decision Date | 11 May 1918 |
| Docket Number | 21436 |
| Citation | 103 Kan. 65,173 P. 537 |
| Parties | ROBERTS v. ROBERTS. |
| Court | Kansas Supreme Court |
Rehearing Denied July 6, 1918.
When the parties to an action for divorce appear to be in equal wrong, the court has discretion either to grant or refuse a divorce. Burke v. Burke, 44 Kan. 307, 24 P. 466, 21 Am. St. Rep. 283, in so far as contrary hereto is overruled.
Such parties are in equal wrong when the conduct of one has established any one or more of the statutory grounds for divorce and the conduct of the other has also established any one or more of such grounds.
When in such action it is found that the defendant’s conduct has established one or more statutory grounds for divorce, it is not error or abuse of discretion, of which such party may complain, to grant a decree to the other party who under the evidence might be, but is not, found to be in equal wrong.
The evidence examined, and it is held that the usual rule that verdicts or findings based on conflicting evidence will not be disturbed sufficiently applies to preclude overturning the result reached by the trial court.
Appeal from District Court, Ford County.
Action for divorce by C. M. Roberts against Maggie L. Roberts. Decree for plaintiff, and defendant appeals. Affirmed.
Hugh T. Fisher, J. S. Dean, M. O. Lock, and C. B. Smith, all of Topeka, for appellant.
Madison & Van Riper, of Dodge City, for appellee.
The defendant appeals from a decree of divorce granted to the plaintiff. The amended petition alleged that the parties were married in Missouri in 1871; that about 4 years before this suit was begun the defendant willfully abandoned him, and had ever since remained away and lived apart from him, and had refused to maintain the relation of a wife to him, thereby constituting abandonment and gross neglect of duty; that for a long time prior to such abandonment she was almost constantly complaining, scolding, and abusing plaintiff over trifling and insignificant matters to such an extent that it became almost impossible for him to live with her; that upon various times, in the presence of divers persons, she assaulted his character, accused him of murder and adultery and at one time assaulted and beat him; that for the purpose of harassing and injuring him and interfering with his business she informed the plaintiff that he would never so long as he lived be able to sell and dispose of any of his real estate, and she refused to join with him in deeds of conveyance of lots which he had opportunities to sell at attractive prices, in order to torment, injure, and harass him. It was further alleged that after the abandonment by the defendant the parties entered into a contract in writing providing for a complete settlement of all their property rights, which had since been carried out by an actual division of the property. After a general denial the defendant pleaded that the only trouble between the parties had arisen because of the plaintiff’s misconduct; that in the year 1883 he became infatuated with one Lizzie Doab, buying and furnishing a house for her, supporting her for a long time, afterwards bringing her to Kansas with him and living with her here; that thereafter the relationship between him and this woman ceased, and the defendant forgave the plaintiff for his past offenses and continued to live in peace and harmony with him for many years during which they, by their joint efforts, accumulated a large amount of property; that during the year 1911 they moved to Dodge City for the purpose of making their home there during the last years of their lives, but that upon their arrival the plaintiff became infatuated with one Velma Warder in such open and notorious manner as to cause public scandal and criticism; that he was also unduly attentive to Velma Warder’s sister, one Etta Conrad, and finally abandoned and deserted the defendant in the fall of 1911, first living with the Conrad woman and her husband and visiting with increasing frequency Velma Warder, and after taking up a residence of his own and employing Velma Warder therein; that during the summer of 1915 he took a trip to California with Velma Warder and another sister, his conduct with these women constituting a public scandal. She further alleged:
"That the cause of the separation between herself and plaintiff is due solely to the infatuation of the plaintiff for said Velma Warder, and is caused not by any fault on the part of the defendant, but by the misconduct of the said plaintiff."
There is no direct charge of adultery with any of these latter named women. The court made findings of fact, and, after reciting the adultery with Lizzie Doab in 1885 and 1886, found:
That about the year 1886 after the defendant came to Kansas, knowing of the former relation with the Doab woman, the parties were thereafter reconciled and lived together for more than 20 years; that about the year 1911 the defendant refused to live with the plaintiff any longer, alleging as her reason therefor that he had become infatuated with a Mrs. Conrad and her sister Velma Warder.
"(7) The defendant, for some time prior to her refusal to reside longer with the plaintiff in 1911, had been complaining and found fault with the plaintiff and refused to permit him to handle his property, particularly real estate, to which she refused to join in the execution of deeds, thereby hindering him in business transactions.
(8) The defendant accused the plaintiff of infidelity, and, according to the testimony of the plaintiff, which was corroborated by the witness, W. H. Eagle, the plaintiff was frequently compelled to leave the table at mealtime, to get away from the defendant’s fault findings and accusations.
(9) Upon one occasion in the year 1911, the plaintiff and defendant had a difficulty ending in a fight, as a result of which the plaintiff was charged with assault and battery upon the defendant, but the jury, after hearing the evidence in the case, found that the plaintiff was not guilty of any offense, and he was acquitted.
(10) Ever since the year 1911, when defendant refused to reside longer with plaintiff, they have lived apart, and there seems to be no hope of their reconciliation. The apparent ill feeling between the parties has grown more pronounced, and the ends of matrimony have been utterly defeated.
(11) About the time of the separation in 1911, the parties made a property settlement, which has since that been put into execution. The court finds that the same was a just and equitable settlement, ample provision having been made by plaintiff for the defendant, and that the same should be ratified.
(12) There is no sufficient evidence to prove the plaintiff guilty of adultery in recent years; and, while he may have been indiscreet in his conduct to some extent, there is no evidence to warrant the court in finding that in recent years the plaintiff has been guilty of adultery or of any conduct which would be sufficient to revive the old offense of adultery which had been condoned for more than 20 years before the separation of plaintiff and defendant."
Without going into details it may be said that had the trial court, with the advantages of hearing and seeing the witnesses, found that the plaintiff, instead of being merely indiscreet, had relapsed into a continuous and persistent adulterer, the abstracts contain evidence to support such finding; but of course there were the usual denials, and in one instance the apparent impeachment of a witness who saw through a window which did not exist, all of which the trial court doubtless duly weighed and considered. It has been held that:
Burke v. Burke, 44 Kan. 307, Syl. 3, 24 P. 466, 21 Am. St. Rep. 283.
The defendant complains of the decree of divorce, being entirely satisfied with the property settlement, urging that the testimony shows the plaintiff to be the offender rather than herself; that the court below failed to apply the law of condonation and recrimination; that there was no testimony justifying a finding that the plaintiff was without fault; and:
The plaintiff testified, among other things, that he was 66 years old in 1917; that for 2 years prior to the division of the property he and his wife had not lived together. He fixed up the house to suit his wife, fixing up four or five rooms just the way she wanted them, and undertook to occupy a bedroom he had prepared for himself, and that when she would go away she would lock the outside doors so that he could not get into his room, and he had to break in with a crowbar; that she hold him he had no business there; that it was her property; that the other old house was good enough for him, and so he took her at her word and went over there. He testified:
That she refused to sign deeds to his property. That he owned 1,960 acres of wheat land and 8 or 10 pieces of property in town.
"Q. What other troubles did you have?
A. Oh, my goodness alive. I could not tell you. I would not attempt to tell you. We had plenty.
Q. I want you to tell the court something of the nature of them and what they were?
A. Well, I happen to think of just one thing right now. I go to see my old mother once a year, and have been now for 10 years. I have rheumatism...
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