Schutte v. Schutte

• Decision Date: 18 April 1922
• Citation: 90 W.Va. 787
• Court: West Virginia Supreme Court
• Parties: George Schutte v. Henrietta Schutte

90 W.Va. 787

George Schutte

v.Henrietta Schutte

Supreme Court of Appeals of West Virginia.

Submitted April 11, 1922.

Decided April 18, 1922.

1. Divorce To Justify Decree for Cruelty Generally Requires Evidence of Personal Violence.

To justify a decree of divorce on the ground of cruel and inhuman treatment generally requires evidence of personal violence or other acts tending to break down the health and happiness of the offended spouse. (p. 789).

2. Same Disavowals of Love and Expressions of Hatred Do Not Constitute Cruelty.

Disavowals of love, expressions of hatred and the like, while the marital relation continues, do not constitute cruel and inhuman treatment of husband by wife. (p. 790).

3. Same Burden Rests on Party Alleging Adultery to Prove Case by Strong Convincing Evidence.

In suits for divorce based on alleged adultery of defendant, the burden rests upon plaintiff to make out his or her case by clear, strong and convincing evidence, sufficient to convince the judicial mind affirmatively. Evidence to raise a suspicion only will not justify a decree of separation. (p. 790).

4. Same Evidence Held Not to Sustain Charges of Adultery and Cruelty.

The charges and counter charges of adultery and of cruel and inhuman treatment in this case held not sustained by such sufficient and convincing proof as to justify reversal of the decree below denying to each of the parties a decree of divorce, (p. 793).

Appeal from Circuit Court, Harrison County.

Action by George Schutte against Henrietta Schutte for divorce, in which defendant brought a cross-bill. From a judgment denying both parties relief, the plaintiff appeals.

Affirmed.

Law & McCue and II. J. James, for appellant. Carter & Sheets and Glenn F. Williams, for appellee. Miller, Judge:

By bill and cross-bill answer each of the parties is seeking a divorce from the other; the plaintiff on the grounds, (1) of alleged cruel and inhuman treatment of the defendant toward him, (2) of adultery alleged against defendant; while the grounds upon which defendant predicates her prayer for affirmative relief against the plaintiff are, (1) desertion, (2) cruel and inhuman treatment, (3) the counter charge of adultery by him. Each of the parties in their respective pleadings names a particular person with whom the other is alleged to have committed adultery.

The defendant denies in her answer all charges of cruel and inhuman treatment, and all acts of adultery charged against her. Plaintiff filed no answer to the cross-hill of defendant. The case was tried by the court upon the pleadings and the documentary and oral evidence of the witnesses adduced by both parties, resulting in the decree complained of by both, denying to them the relief prayed for, or any relief, and dismissing the bill and cross-bill with costs to the defendant against the plaintiff.

The only specific act of cruel and inhuman treatment alleged and sought to be proven by plaintiff consisted of a warrant of arrest procured by defendant January 15, 1920, upon a charge of lunacy against him, which upon investigation and consideration by the lunacy commission of Harrison County was sustained; and that subsequently, upon a writ of habeas corpus sued out by him against defendant Henry M. Schutte, custodian, discharge from custody was denied him by the circuit court; but which judgment was reversed here upon writ of error on September 20, 1920, and the plaintiff discharged and restored to his liberty. 86 W. Va. 701. The only other acts of bad treatment consisted of supposed alleged expressions of disrespect for plaintiff, lack of love for him and love for another, developing into acts of notorious conduct pointing to acts of adultery on the part of defendant with the corespondent, which are alleged to have become unbearable by plaintiff.

The charge of adultery is predicated on various acts of misconduct of defendant with lone Samms within three years prior to the institution of the suit. No specific acts are set out or pleaded in the bill.

Defendant in her answer denies the cruel and inhuman treatment, either in connection with said lunacy charge or in any other manner. The facts relating to the accusation of lunacy sufficiently appear perhaps from the record and opinion in the proceeding already referred to. The record and the evidence adduced before the court in the present case clearly show that the former proceedings were begun only after consultation by both plaintiff and defendant with eminent and qualified physicians, and conduct on plaintiff's part tending to show aberration of mind or an abnormal mental condition, and the fear of defendant, expressed at least, that she was liable to sustain some bodily harm at his hands. While we were of opinion on the hearing of the habeas corpus proceedings that the mental condition of petitioner was not shown to be such as ought to deprive him of his liberty and of his property taken into custody, and that he ought to be discharged, yet under the circumstances there disclosed and here proven, we can not say that they convicted defendant of cruel and inhuman treatment Sufficient to furnish grounds for a decree of divorce. The record shows she did not bring these proceedings hastily, but only after observing plaintiff's strange and unusual conduct, his threats of violence, and after consultation with competent nad reputable physicians. It was the opinion of the circuit court, and it is our opinion that cruel and inhuman treatment is not made out by the record of the lunacy proceedings. Nor do we think the accusations of disrespect as charged have substantial foundation in the evidence. The defendant denies them, and we can not say the decree below, predicated on the want of evidence to sustain them, is wrong. To justify a divorce on the ground of cruel and inhuman treatment generally requires evidence of personal violence or other acts tending to break down the health and happiness of the offended spouse. Section 6, chapter 64, Code.

We have distinctly held that disavowals of love, expressions of hatred and the like, while the marital relation continues, do not constitute cruel and inhuman treatment of the husband by the wife. Huff v. Huff, 73 W. Va. 330; Wills v. Wills, 74 W. Va. 709. By the Code the false charges of prostitution by the husband against his wife amounts to cruelty on his part.

On the only other accusation, that of adultery with said Samms, we are not justified, we think, in reversing the decree below on this ground. Outside of the numerous instances testified to by witnesses, where defendant and Samms were seen riding together in an automobile of the one or the other on the public roads or streets in and about the city of Clarksburg, only three or four instances are given where they are charged with having been seen together in rather secluded places and along the public highways, but where, it is contended, the opportunity to commit adultery was furnished. In one instance three witnesses testify to having seen them together in the Masonic Cemetery near Clarksburg in the act of hugging and kissing each other, showing lascivious conduct and a disposition to commit adultery if opportunity was furnished. It is not pretended by these witnesses that they saw anything more on this occasion than acts of lasciviousness; they do not pretend they saw the parties in the act of adultery, nor that any opporunity was there present for such criminal conversation. Another matter of evidence relied on, testified to by a motorman on the...