Stringfellow v. Stringfellow

• Citation: 56 Wn.2d 957,350 P.2d 1003
• Decision Date: 07 April 1960
• Docket Number: No. 34787,34787
• Court: Washington Supreme Court
• Parties: Wilma E. STRINGFELLOW, Respondent, v. Virgil O. STRINGFELLOW, Appellant

Page 957

56 Wn.2d 957

350 P.2d 1003

Wilma E. STRINGFELLOW, Respondent, v. Virgil O. STRINGFELLOW, Appellant.

No. 34787.

Supreme Court of Washington, Department 2,

April 7, 1960.

Floyd M. Reischling, Max R. Nicolai, Seattle, for appellant.

Riddell, Riddell & Williams, Seattle, for respondent.

FOSTER, Judge.

This is an appeal by the defendant husband from a decree of divorce.

The parties, married in 1929, have accumulated a fortune and have one son now aged twenty-two.

The trial consumed four weeks and one day, and the statement of facts contains slightly in excess of twenty-five hundred pages, one hundred sixty-seven pages of which is argument addressed to the trial court. The charges and countercharges are sordid, indeed. No professional enlightenment would be gained from the details, and public policy decries a permanent memorial to the revolting stories. Certain it is that the marriage is dead, and no useful purpose would be served by a recitation of the details in the concluding act of the judicial autopsy.

Different aspects of this domestic tragedy have been here previously. Stringfellow v. Stringfellow, Wash., 335 P.2d 825. While there are thirty-four separate assignments of error, individual discussion is unnecessary. Several of them deal with the findings granting the plaintiff a decree of divorce. Six specific items of cruelty were found by the trial court, which also found that each instance of cruelty caused the respondent wife great anguish and distress. In some aspects, such findings depend upon the testimony of the respondent wife alone, but in many others her testimony is corborated.

On the stand appellant denied each act of cruelty.

While there is no specific finding, if such be necessary, that one party was unworthy of belief and that the other party's testimony was entitled to credence, it is unmistakably clear that the court disbelieved the appellant and believed the testimony of the wife. This was solely the function of the trial court. The record convinces us, nevertheless, that no other conclusion was possible. Factual disputes are to be resolved by the trial court. The Washington constitution, by art. IV, § 6, vests that power exclusively in the trial court. The power of this court is appellate only, which does not include a retrial here but is limited to ascertaining whether the findings are supported by substantial evidence or not. If we were so disposed, but we are not, we are not authorized to substitute our judgment for that of the trial court. Wise v. Farden, Wash., 332 P.2d 454; Hinz v. Lieser, 52 Wash.2d 205, 324 P.2d 829; Kuyath v. Anderson Construction Co., 52 Wash.2d 174, 324 P.2d 264; Hendricks v. Dahlgren, 52 Wash.2d 108, 323 P.2d 658; Gilliland v. Mount Vernon Hotel Co., 51 Wash.2d 712, 321 P.2d 558; Fischler v. Kicklin, 51 Wash.2d 518, 319 P.2d 1098; Bremerton School District 100-C, Kitsap County v. Hibbard, 51 Wash.2d 226, 317 P.2d 517; Fancher v. Landreth, 51 Wash.2d 297, 317 P.2d 1066; and Croton Chemical Corp. v. Birkenwald, 50 Wash.2d 684, 314 P.2d 622.

The appellant contends that the matrimonial offenses pleaded and proved by the wife against him are absolutely barred under the doctrine of condonation. We do not agree. The court below correctly disposed of this defense in the following words:

'* * * We fail to find substantial reliable evidence that the resumption of marital relationships constituted condonation, and hold that in any event it does not preponderate over the evidence of the plaintiff. We have here a distraught woman, married for twenty-eight years to a strong-willed and obviously domineering husband. She yielded to her desire and his pleas for a reconciliation, but only on condition that she would be treated in a manner different from in the past.

'There was no change in the defendant's attitude when he was confronted with reliable and incriminating evidence. He arbitrarily and stubbornly refused to explain away this evidence. He even challenged her to get evidence further to incriminate him. She did just that.

'Therefore, the plaintiff is entitled to a divorce for the reasons outlined above and others inherent in the evidence.'

Appellant's argument is that condonation is implied because the parties resumed marital relations after a divorce action was instituted by the wife in February of 1957. This was dismissed April 19, 1957, since which time marital relations have not been resumed. On April 22, 1957, respondent wife again sued for divorce, resulting in the decree from which this appeal is prosecuted.

Condonation implies a full and free forgiveness of matrimonial offenses and is conditioned upon future conjugal kindness. The predominate aspect is the intent of each party. Respondent was willing to forgive, conditioned upon the appellant's changed treatment of her. If there is any one undisputed factor in the evidence, it is that the appellant never accepted this condition but stubbornly resisted it. He insists, and his counsel stoutly argued at our bar, that he was not guilty of any matrimonial offense although the overwhelming evidence is to the contrary.

As to one aspect of the charges, he said 'Well, you prove it.' She did. This is not proof of forgiveness.

Moreover, condonation requires a knowledge by the condoner of all of the marital offenses by the other, a completed agreement to forgive, and a restoration of the offender to all marital rights. It is not a trap for the unwary forgiving wife, but, on the contrary,...