Smith v. Smith, Civil 4532

CourtSupreme Court of Arizona
Citation61 Ariz. 373,149 P.2d 683
Docket NumberCivil 4532
PartiesBETH SMITH, Appellant, v. SAM R. SMITH, Appellee
Decision Date12 June 1944

APPEAL from a judgment of the Superior Court of the County of Yavapai. Richard Lamson, Judge. Judgment modified and affirmed.

Mr. W H. Chester, for Appellant.

Messrs Ewing & Franks, for Appellee.

OPINION

ROSS J.

The parties hereto were married December 24, 1928, in Phoenix Arizona. They have two children the issue of said marriage, Andrew, aged six, and Sammy Joyce, aged five. The action is for divorce and custody of the children by the husband Sam R. Smith, and was commenced June 21, 1941, in the superior court of Yavapai County, alleging as grounds therefor that the defendant has been guilty of excess and cruel treatment towards the plaintiff in this, that the wife and mother Beth Smith in 1934 became affiliated with an organization known as Jehovah's Witnesses, a sect of religious fanatics whose methods of propagating their beliefs are so aggressive, obnoxious and obtrusive as to arouse resentment and physical violence on the part of the public. He further alleges defendant refused to live with him at their home in Mayer, Arizona, where he was engaged in mining, claiming her religious work demanded that she reside in the city of Prescott, where she was engaged in spending her time calling on the public and distributing Witnesses' literature, to the great annoyance of plaintiff's friends and acquaintances who requested plaintiff to keep her away from them, to his extreme embarrassment and grievous mental suffering; that in aid of her religious activities she used the two minor children to distribute literature and exposed them to probable physical violence; that she has not properly fed nor cared for the children, and will not permit them to salute the American flag. Plaintiff alleges he has arranged for a proper home for the children and for their education.

The defendant moved that all of the allegations in plaintiff's complaint concerning her religious attitude be stricken as improper and as no ground for divorce. The motions were denied, whereupon she filed an answer, charging plaintiff with cruelty towards her in "that he has constantly cursed and abused this defendant and cross-complainant and has threatened her with bodily injury." She further charges plaintiff with habitual intemperance and as not a fit person to have the care of the children. She alleges that he is an able-bodied man, earning approximately the sum of $300 per month. She asks for a divorce, the custody of the children, support money and attorney's fees.

On the issues thus formed the court took the testimony of witnesses, and having duly considered the evidence, rendered its judgment granting the divorce as prayed for, and awarding to the plaintiff the custody of the two minor children. It is from this judgment and the whole thereof that the defendant wife has appealed.

One of the statutory grounds for divorce is:

"(5) Where the husband or wife is guilty of excesses, cruel treatment or outrages toward the other, whether by the use of personal violence or other means." Section 27-802, Arizona Code Annotated 1939.

We observe that both parties ask to be given their freedom from the other. That may not be done except upon a ground provided by the statute. They both charge cruelty, and we have no doubt the conduct of the defendant, as found by the court constituted cruel treatment of and outrages towards the plaintiff. These parties after their marriage and until the wife became a Witness had gotten along fairly well. They were apparently cooperative and reasonably satisfied with each other and their lot in life. He was a hard working laboring man, and she a true and sympathetic helpmate doing her part in their homemaking. The fatal rift between them came when she embraced line, hook...

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16 cases
  • Ormachea v. Ormachea
    • United States
    • Nevada Supreme Court
    • 17 d1 Abril d1 1950
    ...conduct which destroys the legitimate objects and ends of the marriage. Hassell v. Hassell, 185 Okl. 154, 90 P.2d 885; Smith v. Smith, 61 Ariz. 373, 149 P.2d 683; Stegmeir v. Stegmeir, 158 Kan. 511, 148 P.2d 755; Holloman v. Holloman, 49 N.M. 288, 162 P.2d 782. This court has already stated......
  • Muhammad v. Muhammad
    • United States
    • Mississippi Supreme Court
    • 5 d4 Agosto d4 1993
    ...Golden v. Arons, 36 N.J.Super. 371, 115 A.2d 639 (1955); Mertens v. Mertens, 38 Wash.2d 55, 227 P.2d 724 (1951); Smith v. Smith, 61 Ariz. 373, 149 P.2d 683 (1944); Wilson v. Wilson, 58 Cal.App.2d 641, 137 P.2d 700 (1943); Krauss v. Krauss, 163 La. 218, 111 So. 683 (1927). In Sinclair, the K......
  • Meredith v. Meredith
    • United States
    • Idaho Supreme Court
    • 22 d3 Novembro d3 1967
    ...Stone v. Stone, 16 Wash. 2d 315, 133 P.2d 526 (1943); Cory v. Cory, 70 Cal.App.2d 563, 161 P.2d 385 (1945). Contra see: Smith v. Smith, 61 Ariz. 373, 149 P.2d 683 (1944); Commonwealth ex rel. Derr v. Dree, 148 Pa.Super. 511, 25 A.2d 769 (1942); Salvaggio v. Barnett, 248 S.W.2d 244 However, ......
  • M--- L--- B--- v. W--- R--- B---
    • United States
    • Missouri Court of Appeals
    • 7 d5 Agosto d5 1970
    ...it has been held (soundly, we think) that neither past delinquency (24 Am.Jur.2d Divorce and Separation § 802, p. 912--see Smith v. Smith, 61 Ariz. 373, 149 P.2d 683(2, 3); Kennard v. Kennard, 87 N.H. 320, 179 A. 414, 417--418(1)), nor former conviction and confinement (Radford v. Matczuk, ......
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