Spofford v. Spofford

• Decision Date: 23 April 1910
• Parties: JUDSON SPOFFORD, Appellant, v. JULIA R. SPOFFORD, Respondent
• Court: Idaho Supreme Court

108 P. 1054

18 Idaho 115

JUDSON SPOFFORD, Appellant, v. JULIA R. SPOFFORD, Respondent

Supreme Court of Idaho

April 23, 1910

APPELLATE PRACTICE-WEIGHT OF EVIDENCE-DIVORCE-CRUELTY-INDUCING CAUSE-AGGRAVATION OF OFFENSE.

(Syllabus by the court.)

1. Where the trial court has heard and determined a case solely on depositions and documentary evidence, and an appeal is taken from the judgment on the ground that it is not supported by the evidence, the appellate court will examine and weigh the evidence the same as if the case were being tried de novo.

2. Where a decree of divorce is asked by the husband on the grounds of cruelty by the wife, and such cruelty is alleged to have consisted in the wife's hostile demonstrations and lecturing, nagging and hectoring the husband on account of what she deemed to be undue attentions and intimate relations on the part of the husband toward other women, and the evidence discloses that he had been so indiscreet in his conduct toward others as to arouse suspicion on the part of his wife, the conduct of the wife in her protests and outbursts of feeling will not be viewed with the same severity and rigidity by the law as it would be in a case where no such apparent provocation existed.

3. The party to the marital contract who by his acts and conduct induces suspicion from the other spouse and thereby pro- vokes remonstrance, protests and hostile demonstrations from the other party to the contract, must expect when the crisis comes to exercise a degree of patience and forbearance which the law would not otherwise expect of him under more favorable circumstances.

4. Evidence in this case examined, weighed and considered, and held not sufficient to justify the granting of a divorce.

APPEAL from the District Court of the Second Judicial District, for Nez Perce County. Hon. Edgar C. Steele, Judge.

Action for divorce. Decree denied, and plaintiff appeals. Affirmed.

Judgment affirmed, with costs in favor of respondent.

Eugene O'Neill, and H. G. Redwine, for Appellant.

In this case none of the witnesses appeared before the district judge. The case was heard before a referee and appellant invokes the rule laid down in Roby v. Roby, 10 Idaho 139, 77 P. 213; Stoneburner v. Stoneburner, 11 Idaho 603, 83 P. 938.

Extreme cruelty may be as effectually caused by conduct which produces mental suffering, and robs complainant of his or her peace of mind as by blows inflicted; and to many persons the burden of the mental suffering will be much harder to bear than the burden of any ordinary physical suffering. (Sylvis v. Sylvis, 11 Colo. 319, 17 P. 916; Barnes v. Barnes, 95 Cal. 171, 50 P. 298, 16 L. R A. 660; McDonald v. McDonald, 155 Cal. 665, 102 P 927, 25 L. R. A., N. S., 45; Kapps v. District Court (Nev.), 103 P. 235; Avery v. Avery, 148 Cal. 239, 82 P 967.)

Black & Wernette, for Respondent.

The gravamen of the complaint of appellant is cruelty and inhuman treatment. It is essential to establish this ground for divorce that the wrongs inflicted must be wilful and intentional. The absence of this element will defeat the divorce. (Ring v. Ring, 118 Ga. 183, 44 S.E. 861; Miller v. Miller, 78 N.C. 108; Everton v. Everton, 50 N.C. 210; Shaw v. Shaw, 17 Conn. 189, 7 Bish. Mar. & Div., sec. 1575; Beckley v. Beckley, 23 Ore. 226, 31 P. 470; Ennis v. Ennis, 92 Iowa 107, 60 N.W. 228; 14 Cyc. 601, 602.)

"The cruelty which lays a just and legal foundation for a divorce must be unmerited and unprovoked." (Taylor v. Taylor, 11 Ore. 303, 8 P. 353.)

The plaintiff himself has been guilty of such action as estops him from claiming any grounds for divorce, because of the result which such actions had upon his wife, and because of her resentment of the treatment which he accorded her. (Masterman v. Masterman, 58 Kan. 748, 51 P. 277; Wheeler v. Wheeler, 18 Ore. 261, 24 P. 900; Johnson v. Johnson, 14 Cal. 460; Stoneburner v. Stoneburner, 11 Idaho 603, 83 P. 938; Ennis v. Ennis, 92 Iowa 107, 60 N.W. 228; Reed v. Reed, 4 Nev. 836; Boone v. Boone, 12 Ore. 437, 8 P. 450.)

Where it appears that a defendant in a divorce proceeding has means and his wife has not, the court will allow her suit money and counsel fees. (Day v. Day, 12 Idaho 556, 86 P. 531, 15 Idaho 107, 96 P. 431.)

It is proper to grant counsel fees to wife, and order them paid. (Pike v. Pike, 123 Ill.App. 553; 9 Current Law, 93, sec. 7.)

AILSHIE, J. Sullivan, C. J., and Stewart, J., concur.

OPINION

AILSHIE, J.

This action was instituted by the husband against the wife, praying for a decree of divorce on the grounds of cruel and inhuman treatment. The plaintiff alleged that the defendant for a couple of years pursued a course of abuse, nagging and hectoring the plaintiff, until she drove him to the verge of nervous prostration, and impaired his health both physically and mentally. The defendant answered, denying the allegations of the complaint. The case was referred to a referee to take the proofs and report the same to the court. The trial court heard and determined the case solely on depositions; and under the rule heretofore announced by this court it is incumbent on us to examine and weigh the evidence on appeal the same as if the case had never been passed upon by the trial court. (Roby v. Roby, 10 Idaho 139, 77 P. 213; Stoneburner v. Stoneburner, 11 Idaho 603, 83 P. 938.)

The trial court denied the plaintiff a decree of divorce, and this appeal is from the judgment and an order denying a motion for a new trial, and the appellant has assigned 217 errors. Most of these go to the admission and rejection of evidence, but the whole question resolves itself down to the sufficiency of the evidence to support the findings and judgment of the trial court. We have examined the record in this case, consisting of more than 600 pages, with patience and care for the purpose of determining not only the facts it establishes, but also the correctness of the rulings of the court in the admission and rejection of evidence. Since the proofs were taken in this case before a referee, the evidence which was excluded is incorporated in the record as well as the evidence alleged to have been improperly admitted being in the record. We shall, therefore, judge and determine the rights of the parties upon the whole record as it appears before us--giving weight to that which was proper to be considered and excluding such, if any there be, as was improperly admitted.

We shall not attempt to set forth in this opinion the evidence produced on either side of the case, nor shall we attempt to analyze the proofs offered. To do so would serve no useful purpose whatever, and to incorporate a statement of the proofs in this opinion would be of no interest or consequence to anyone. We shall content ourselves with stating briefly some of the conclusions that must inevitably be drawn from the record in this case.

At the time of their marriage the plaintiff, who is appellant here, was about fifty-six years old, and the defendant about forty-seven. They intermarried at Trenton, N. J., on September 25, 1902, and lived together harmoniously until about August, 1905. In the year 1905 the appellant was engaged in promoting an electric railway project between Lewiston and Grangeville in this state, and during the meanwhile the parties were residing at Lewiston. In August of that year, plaintiff and respondent, in company with respondent's brother and his family, organized a camping party and invited a family named Twombley. The Twombleys were from Illinois. A few days after they went into camp Mrs. Spofford became greatly displeased over the conduct of her husband toward Mrs. Twombley, and remonstrated with her husband about the matter. Appellant had in the meanwhile been paying Mrs. Twombley some attentions and courtesies which tended, perhaps, to arouse his wife's suspicion and to annoy one of her nervous and apparently jealous disposition. In a couple of days the respondent left the camp and went to their hotel in Lewiston and did not return. Appellant remained with the camping party for some two weeks, and in the meanwhile was in daily association with Mrs. Twombley and went fishing with her a time or two. In course of a month the Twombleys went east.

Some time after the Twombleys went east there came to Lewiston a Mrs. Monteith and her sister, Miss Wills, who became intimate with the Spofford family. Mrs. Spofford soon became jealous of her husband's attentions to these women. The result of the wife's jealousy of the attentions her husband paid to these several women was many protestations, lectures, and, as the husband testifies, hostile demonstrations on the part of the wife, often extending far into the night and disturbing his rest and peace of mind and breaking down his health. This, he says, became so bad and trying he could no longer endure it, and he accordingly left his wife and declined to live with her any longer.

Under the circumstances of this case, the acts proven against the respondent cannot be held to constitute extreme cruelty within the meaning of the statute. (Sec. 2649, Rev. Codes.) By this we do not mean to say that respondent's conduct in this regard is commendable or that a man must forever endure it with patience. The appellant, however, has not been free from blame and censure. He has pursued a course of conduct toward other women which was calculated to arouse suspicions on the part of the wife and to kindle the fires of jealousy. It is fair to say that the record entirely fails to show that appellant has been criminally intimate with any of these women; it rather inclines us to the belief that he has not, but he has been indiscreet and unwise in his conduct and he certainly owed it to his wife as well as to himself to "avoid the appearance of...