Saint v. Saint

• Court: Kansas Supreme Court
• Writing for the Court: FONTRON
• Citation: Saint v. Saint, 196 Kan. 330, 411 P.2d 683 (Kan. 1966)
• Decision Date: 05 March 1966
• Docket Number: No. 44350,44350
• Parties: Otis A. SAINT, Appellee, v. Mildred I. SAINT, Appellant.

Page 683

411 P.2d 683

196 Kan. 330

Otis A. SAINT, Appellee, v. Mildred I. SAINT, Appellant.

No. 44350.

Supreme Court of Kansas.

March 5, 1966.

Syllabus by the Court

1. In an action for divorce, the defense of condonation is an affirmative defense which must be established by a preponderance of the evidence.

2. Where a course of conduct embracing a series of cruelties or indignities is relied on as the basis for divorce, continued cohabitation, as opposed to a resumption of cohabitation, does not have the same significance as it does where adultery forms the basis of the action.

3. An action for divorce is an entirely different cause of action from one for separate maintenance. The granting of a divorce to one party precludes the granting of separate maintenance to the other (following Zeller v. Zeller, 195 Kan. 452, 407 P.2d 478).

4. The judgment of a trial court providing for the division of property and allowance of alimony in a divorce action is not to be set aside or vacated in the absence of a clear abuse of discretion.

5. The record is examined in an action for divorce and it is held: (1) That the judgment decreeing a divorce to the husband on the ground of extreme cruelty is supported by the evidence; and (2) that abuse of discretion in the division of property and award of alimony is not affirmatively established.

Don W. Noah, Beloit, argued the cause, and was on the brief for appellant.

Fred D. Swoyer, Belleville, argued the cause, and was on the brief for appellee.

FONTRON, Justice:

This divorce action was commenced by Otis A. Saint against his wife, Mildred. Mrs. Saint filed an answer denying generally the charges made by her husband and alleging condonation. She filed, also, a cross petition for divorce which was later amended to one for separate maintenance.

After a full dress hearing, the trial court granted a divorce to the plaintiff husband (appellee) on the ground of extreme cruelty, denied separate maintenance to the defendant wife (appellant), set aside to the wife all of her separately owned property, including government bonds, and awarded her the sum of $14,500.00 as alimony and division of property. All other property was awarded to the husband. The defendant has appealed from that judgment.

Several points are raised on appeal: (1) That plaintiff's evidence was insufficient to prove extreme cruelty, that it was not corroborated and that it established condonation; (2) that the court erred in denying separate maintenance to defendant; and (3) that the court abused its discretion in its division of property and award of alimony. We shall consider these points in due course.

The parties were married July 20, 1952, Mr. Saint for the second time, Mrs. Saint for the first. The bridegroom was a prosperous farmer, his wife a long time school teacher. Both were 51 years of age when married. On the date of their marriage, Mr. Saint owned three farms aggregating some 620 acres, together with tangible and intangible personal property of substantial value. Mrs. Saint brought little of material wealth to the marriage. No children were born to this union, but plaintiff had two adult children of his first marriage, both with homes of their own.

The record makes it clear that the course of true love did not long run smoothly, but the evidence was sharply conflicting as to where the primary blame rested. The trial court, in its wisdom, found that extreme cruelty had been established on the defendant's part, and we believe that its finding was warranted.

It is true that the defendant was not shown to have engaged in physical violence against her spouse but mistreatment of that nature is not essential to the existence of extreme cruelty. This court has often held that physical abuse is not required to meet the statutory requirement of extreme cruelty. (Preston v. Preston, 193 Kan. 379, 381, 394 P.2d 43.) In Hayn v. Hayn, 162 Kan. 189, 175 P.2d 127, it was said:

'* * * Extreme cruelty as contemplated by the divorce statute is no longer regarded as being limited to acts of physical violence. The modern and better considered cases have repudiated the ancient doctrine requiring physical violence as too low and sensual a view of the marriage relation. It is now generally held, and in this state it has long been the rule, that any unjustifiable and long practiced course of conduct by one spouse towards the other which utterly destroys the legitimate ends and objects of matrimony constitutes extreme cruelty though no physical or personal violence may be inflicted, or threatened. * * *' (p. 193, 175 P.2d p. 130.)

Although denied, there was evidence that repeatedly throughout her marriage the defendant became angered at her husband, on which occasions it was her habit to retire to the basement, or her bedroom, there to pout and sulk for protracted periods; and that for days at a time she would refuse to speak to or communicate with her husband.

Without going into specific detail, we may say there was testimony which, if believed, disclosed a course of conduct on the defendant's part tending to disrupt domestic harmony and to destroy legitimate matrimonial objectives. We have often characterized such behavior as extreme cruelty within the purview of Kansas statutes governing divorce.

But Mrs. Saint maintains her husband's testimony was not corroborated. In this, we believe she is mistaken. The plaintiff's children both testified that on divers occasions their stepmother would stomp or stalk from the room and betake herself to the basement, where she would pout and sulk. While neither of these witnesses were able to confirm their father's evidence in all its details, minute corroboration was not essential to establish the validity of his case. In Kelso v. Kelso, 182 Kan. 665, 324 P.2d 165, we held:

'The provisions of G.S.1949, 60-1509, requiring that the testimony of a complaining spouse as to the delinquencies of the other, alleged as grounds for the divorce, be corroborated, do not require corroboration of each and every detail concerning which testimony has been given. The requirement of corroboration is met if there remains corroborated testimony of acts or conduct sufficient to justify a judgment for divorce.' (Syl. p7.)

Applying the rule so well stated in Kelso, which we might add was recently reaffirmed in Gardner v. Gardner, 192 Kan. 529, 389 P.2d 746, we have no difficulty in concluding there was sufficient corroborating evidence in this case.

We have scrutinized the record for evidence of condonation but find nothing from which it may even be inferred. The offensive conduct charged against Mrs. Saint extended over many years; it was continuous in nature. Yet the Saints managed to abide together for some twelve years, even though, as plaintiff testified, they may not have lived together as man and wife for the last several years and may even have occupied separate bedrooms. Their separation occurred only in July 1964, when Mr. Saint did not return to the family abode after a sojourn in the hospital, and there is nothing in the record to suggest that they have lived together since that time.

It is generally held, where conduct embracing a series of cruelties or indignities is relied on as a basis for divorce, that continued cohabitation, as opposed to a resumption of cohabitation, does not have the same significance as it does where adultery forms the basis of the action. (17 Am.Jur., Divorce and Separation, § 238, pp. 421-422; 32 A.L.R.2d Anno: Divorce-Cruelty-Condonation, §§ 8, 9, 10, pp. 127-133.)

In Brown v. Brown, 171 Kan. 249, 232 P.2d 603, 32 A.L.R.2d 102, this court considered the matter of condonation and said:

'The effect of voluntary cohabitation after acts of cruelty on the part of one spouse as evidencing condonation of the offense by the other stands upon a different basis than cohabitation after knowledge of adultery on the part of one spouse. Cruelty as a ground for divorce is generally a course of conduct rather than a single act. The rule is that sexual cohabitation after acts of cruelty cannot be considered as condonation in the sense in which it would be after an act of adultery. The effort to endure unkind treatment as long as possible is commendable; and it is obviously a just rule that the patient endurance by one spouse of the continuing ill treatment of the other should never be allowed to weaken his or her right to relief.' (p. 252, 232 P.2d p. 605.)

It is also well settled in this jurisdiction that repetition of an offense after it has been condoned revives...