Rowe v. Rowe

• Decision Date: 06 May 1911
• Docket Number: 17,021
• Citation: 115 P. 553,84 Kan. 696
• Parties: SARAH T. ROWE, Appellee, v. FRANK S. ROWE, Appellant
• Court: Kansas Supreme Court

115 P. 553

84 Kan. 696

SARAH T. ROWE, Appellee, v. FRANK S. ROWE, Appellant

No. 17,021

Supreme Court of Kansas

May 6, 1911

Decided January, 1911.

Appeal from Allen district court.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. DIVORCE--Extreme Cruelty--What Constitutes. Extreme cruelty exists when the conduct of the husband or wife is such that the life or health of the other may be endangered or when such conduct unjustifiably wounds the mental feelings or so destroys the peace of mind as seriously to impair the health or endanger the life of the other, or is such as utterly destroys the legitimate objects and aims of matrimony; and when words alone are relied on it must appear that they were uttered not merely as complaints against the real or apparent misconduct of the other, but that they were uttered without justifiable cause and for the purpose of inflicting pain.

2. DIVORCE--Extreme Cruelty--What Does Not Constitute. Occasional irritability, faultfinding and outbursts of temper on the part of one, followed by demonstrative affection and by forbearance, with a sincere desire for the love and companionship of the other, do not constitute extreme cruelty.

R. H. Bennett, and R. E. Cullison, for the appellant.

H. A. Ewing, S. A. Gard, and G. R. Gard, for the appellee.

OPINION

WEST, J.:

The parties hereto became acquainted at Pike's Peak in October, 1899. They were married at Iola, Kan., October 5, 1904. The plaintiff was then about twenty-seven years of age, in fair health, and well educated. Her mother was a well-to-do widow, advanced in years, to whom she was greatly attached --her affection being fully reciprocated. The defendant lived at Baltimore, Md., where he was a railroad ticket agent, and there the couple went to live. Though earning but a small salary the defendant when married was worth from $ 10,000 to $ 12,000, and is an energetic and successful business man, being at the time of the trial worth from $ 18,000 to $ 20,000. The parties lived at Baltimore--plaintiff's mother living with them for some time--until June 21, 1907, when the wife came to Iola where this action was begun, November 17, 1908. The court granted her a decree on the ground of extreme cruelty, and also awarded her alimony.

The defendant attacks the findings as beyond and unsupported by the evidence and insists that extreme cruelty was not shown, and therefore the decree was unwarranted. The court made forty findings of fact and we have carefully examined them as well as the evidence found in more than 100 pages of the abstract. The most serious findings are to the effect that upon the wedding trip the defendant manifested petulance and irritability, causing plaintiff distress of mind; that at the St. Louis exposition grounds the failure of some relatives to arrive at a certain time "greatly enraged defendant and by his temperament and demeanor and faultfinding had a tendency to greatly humiliate the plaintiff and destroy her happiness"; that on two different occasions he applied to her the opprobrious epithet of being a "kept woman"; that on several occasions he threatened to abandon her and once threatened to blow up the house, which so frightened her that she fled and sought shelter at the home of her mother-in-law; that plaintiff's right lung becoming affected, he opposed her consulting a physician, intimating that she wanted to spend his hard-earned money needlessly; that early in 1907 he would upbraid her for keeping him awake at night by her coughing, but refused to permit her to take another room when she expressed a desire to do so; "that on one occasion . . . the plaintiff, in order to avoid the faultfinding by defendant by reason of her coughing during the night, went to her mother's room to remain there during the night and thus have rest for herself and not annoy defendant by her coughing; this greatly enraged defendant and he entered the room of plaintiff's mother, where both the mother and the plaintiff had retired, and violently seized plaintiff and forcibly endeavored to carry her from the room"; that on or about the 21st day of June, 1907, plaintiff, being in a very enfeebled condition and believing herself without sufficient medical attention, and because of the defendant's gross insults and ill treatment, was compelled to leave him, and returned to her mother at Iola; and that since that time he has wholly neglected and refused to provide for her.

The petition alleged that plaintiff's health became impaired and her right lung affected as the result, as she believed, of defendant's "constant indignities and oppression"; that at times he abused her outrageously by speaking to her harshly in a manner that would annoy and aggravate her and hurt her feelings; that in "one of his fits of abuse" he called her a "kept woman"; that upon several occasions he laid violent hands upon her; that he treated her like a slave instead of a wife by re-requiring her to meet him at the door on his return from the office and expecting her to relieve him of whatever he might be carrying, saying once in her presence, speaking of her: "I bought her and paid for her"; that by reason of his gross insults, ill treatment, complaints and neglect "she was compelled to leave the defendant and return to her old home in Iola on or about the 21st day of June, 1907." Various other charges were embraced in the first cause of action, and the second alleged an abandonment of plaintiff by defendant on June 21, 1907, of which no proof whatever was offered. The 37th finding is as follows:

"I further find that all and singular the several matters and things in plaintiff's petition averred of and concerning defendant are and were at the commencement of this suit true."

Aside from this there is no finding or evidence of any assault unless it be on the occasion when plaintiff went to her mother's room. The findings as well as the evidence disclose a number of petty and trivial matters too insignificant to deserve notice or to require attention. As to the matters of seeming importance covered by the findings the evidence shows that the irritability at the St. Louis exposition was scarcely worthy of mention. The "kept woman" matter was simply and only this: The defendant desired a child, but plaintiff did not and asserted that should she have one it would be as ugly as defendant's stone tobacco jar. He then referred to a remark once made to him by a chum that being married and having no children was too much like having a kept woman. There is no dispute that this remark of the chum was repeated and received in perfect good humor, though plaintiff testified that once afterward she referred to it and he said, "Yes you are," to which she replied that he should not expect a kept woman to make a home and be a wife. The plaintiff did not testify to a single threat of abandonment, unless a threat to "leave the house" could be tortured into such a thing. The testimony shows that defendant had her consult different physicians, but that they did not find evidences of tuberculosis earlier than May, 1907, and there is no question that he provided for her liberally and maintained her in ease in a well-appointed house.

The bedroom episode is explained by the defendant in this wise: His wife had been sleeping with her mother who objected to the daughter sleeping with the husband, and finally plaintiff voluntarily told him she would sleep with him that night. They went to their room and disrobed, when plaintiff went down to bid her mother good night. After waiting for her to return until half past eleven, the defendant went down and rapped on the door and asked her to come, and the mother said: "Hold yourself and don't you do it." Upon requesting a talk with his wife, who bade him open the door, he entered the room, when the wife arose, whereupon the mother rose in bed and said: "She will never leave this room this night."

"I put my arm around my wife. At that moment her mother jumped out of bed and said she was going to call a police out of the front window, and Mrs. Rowe said to me, 'Frank, you had better go on to bed and let me stay here all night.' I said, 'If you positively will, all right, but you...