Siebert v. Siebert

• Decision Date: 14 April 1964
• Docket Number: No. 1177,1177
• Citation: 124 Vt. 187,200 A.2d 258
• Parties: Marion E. SIEBERT v. Frank T. SIEBERT, Jr.
• Court: Vermont Supreme Court

Page 258

200 A.2d 258

124 Vt. 187

Marion E. SIEBERT v. Frank T. SIEBERT, Jr.

No. 1177.

Supreme Court of Vermont.

April 14, 1964.

A. Luke Crispe, Brattleboro, John A. Lowery, Bellows Falls, for plaintiff.

Robert Grussing, III, Brattleboro, for defendant.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and SYLVESTER, JJ.

SYLVESTER, Justice.

This is a contested divorce action heard by Superior Judge Divoll, specially assigned, sitting alone by consent of the parties. The case was heard on libellant's libel and libellee's cross-libel. Findings of fact were duly made, filed, and a decretal order issued March 21, 1963, granting the libellant Marion E. Siebert a divorce upon the grounds of intolerable severity. Libellee's cross-libel was dismissed. The libellant was granted custody of the two minor children of the parties, and the libellee was ordered to make weekly payments for their support. Libellant was awarded alimony and counsel fees. The decree also contained extensive and comprehensive provisions concerning the disposition of the property of the parties, payment of certain insurance premiums, and the creation of a trust fund for the advanced education of the two minor children.

The case is here on libellee's notice of appeal. He contends that certain findings are unsupported by evidence; that the trial judge drew upon his personal knowledge of the parties in making them; that the findings fail to reveal any misconduct on his part amounting to intolerable severity; and that the court by certain of its findings, especially Nos. 4 and 17, is in effect saying, that the difficulties experienced by the parties resulted from a basic difference in their background training and philosophies, rather than any misconduct on his part constituting intolerable severity. He says the court chose to ignore the conflicting testimony as it related to the parties' conduct, which could have afforded a basis for finding intolerable severity and, in effect, granted the libellant a divorce on the grounds of incompatibility.

Further, the libellee contends the decree is not supported by the findings of fact; that the findings of fact upon which the court based its ultimate finding of intolerable severity are not supported by the evidence. He excepted to the court's order concerning the division of property of the parties, payment of certain sums as alimony and counsel fees, as well as for the support and education of the minor children. He urges that the decretal order be set aside and the libel be dismissed, or, in the alternative, that the decree be reversed and the case be remanded for a new trial.

The parties were married November 24, 1956, at Pittsburgh, Pennsylvania. At the time of marriage the libellant was about 30 years old, the libellee 42. Following their marriage they took up residence in Bellows Falls, Vermont, and were residing there at the time the case was heard on September 18 and 19, 1962. Two children were born of the parties, the first in April, 1958, the second in July, 1961. The parties separated in January, 1959, following a period of marital discord. They became reconciled and resumed living together in July, 1960 and continued living together until the final separation in April, 1962.

The libellee maintains that the trial judge went to considerable length in describing the backgrounds, philosophies, and nature of the parties in his findings, and that these findings dealing with the natures and philosophies of the parties are unsupported by the evidence and based entirely upon the acquaintance with, and personal knowledge of the parties. An examination of findings Nos. 4, 5, 6, 7, 9, 15, and 17, lends support to this claim.

We think the court invited trouble when he 'found' in paragraph number 4 the following: 'The difficulties between these parties arose so apparently as a result of their respective personalities that a rather detailed description of each is necessary.' First away, it should be obvious that to 'find' a 'detailed description' of the parties to the extent of the court's findings here, on this subject, would entail a personal acquaintance with the parties, such as the court subsequently found he possessed in finding number 5.

We now turn to and quote the findings, or portions thereof, that libellee challenges and claims are unsupported by evidence, and which he contends are based upon the personal knowledge of the trial court.

'5. Both of the parties are accepted prominent persons in the community of Bellows Falls in which they live and as such are both personally and socially known to the Presiding Judge. Any descriptions of them and their personalities and philosophies are given without prejudice and without any thought of derogation but simply as to the court's views of the reasons leading up to the bringing of this libel.'

'6. The libellant, Marion E. Siebert, is an attractive and charming woman, 36 years of age, extremely careful in her appearance both as to style and cleanliness. She dresses stylishly, modishly and tastefully and created a very favorable impression. She originated in a middle class family of moderate means in and around Pittsburgh, Penn. area' * * * 'From the evidence the court finds that her family were rather easy going financially and enjoyed spending the money they had for the privileges of living at least up to their income if not in excess of it. While Mrs. Siebert is an attractive woman her interests are rather limited and are confined almost solely to her house, her family and her friends with no apparent deep-seated interest in any hobby, study or profession or even to the matter of reading current events and the troubles and problems of the world today. Financially her thinking is to enjoy the money that is available and to enjoy it to the utmost without squandering it. This thinking would be that she should have a nice home, that it should be well appointed, that the furnishings should be suitable to her position in the community, that her clothing should be stylish, serviceable and a credit to her and her appearance as she wore it and that her children should be brought up clean and neat with proper clothing, education and benefits as would befit their...