Strong v. Strong, 381
| Decision Date | 07 November 1962 |
| Docket Number | No. 381,381 |
| Citation | 123 Vt. 243,185 A.2d 924 |
| Parties | Rebecca A. STRONG v. Rollin M. STRONG. |
| Court | Vermont Supreme Court |
Latham & Eastman, Burlington, for plaintiff.
Joseph S. Wool, Burlington, for defendant.
Before HOLDEN, SHANGRAW, BARNEY and SMITH, JJ.
This is a divorce action. The grounds alleged are intolerable severity. The libellant had a decree for divorce on the ground stated and the case is here on notice of appeal by the libellee.
The first exception briefed by the libellee to the findings of fact made by the court below is that the facts found, upon which the decree is based, were from the uncorroborated testimony of the libellant. This was a contested action in which the only witnesses as to the acts and circumstances which the libellant claimed constituted intolerable severity were the parties themselves. The testimony thus given was entirely contradictory, and made it abundantly clear that there was an utter lack of collusion between the parties. In such a situation it is our law that the trial court may properly find facts from the uncorroborated testimony of the libellant. Castle v. Castle, 118 Vt. 112, 113, 100 A.2d 574. The reason for the rule is evident for it is common knowledge that a large share of domestic discord occurs only between the marital partners when they are alone and away from the presence of others. Corroboration of the conduct of the parties at such times is an obvious impossibility, and the establishment of a rule requiring it would result in the denial of relief in cases that were otherwise meritorious.
Libellee has also excepted to Finding of Fact 13 in which the lower court stated that the conduct of the libellee as a witness was 'sufficient corroboration to satisfy the Court.' This finding, in the light of the rule just stated that no corroboration is necessary to corroborate the testimony of the libellant where there is no collusion between the parties becomes mere surplusage and an immaterial finding of fact, and we need not consider it. University of Vermont v. Wilbur's Estate, 105 Vt. 147, 174, 163 A. 572.
The libellee's next assertions of error are that the facts found do not make out a case of intolerable severity and that facts found, upon which the lower court based its finding of intolerable severity, were in error.
The lower court found from the testimony of the libellant that the libellee had admitted to the libellant various instances of his unfaithful conduct with other women during the period of their marriage. She also testified that she found contraceptive material in the automobiles that he used, and stated that at one time he expressed to her fear of having contracted a venereal disease. It was also her testimony that he had threatened her frequently and stated he would take the children of the couple with him if she instituted divorce proceedings. All this, the libellant testified, caused her to lose weight, to become nervous and unable to sleep and suffered humiliation and embarrassment.
Finding No. 4, excepted to by the libellee, states: 'The party have had trouble periodically since 1954 caused by the libellee's absence from home nights, returning often in the early morning hours; excessive use of intoxicants; absence or lateness for his evening meal; refusal to account to the libellant of his whereabouts and his apparently lack of interest in the home and family.'
A search of the transcript fails to disclose any evidence of the excessive use of intoxicants on the part of the libellee. In fact, no testimony of any nature on any use of intoxicants on his part appears on the record.
Finding No. 11, excepted to by the libellee, states: 'Libellee threatened to take the children away from libellant if she instituted divorce proceedings or accused him of unfaithfulness in any court proceedings; she became afraid of him.'
While the transcript disclosed evidence of the threat mentioned in the above finding by the lower court, nothing appears in the record before us in which the libellant expressed herself as being fearful because of such threats.
These are both findings by the lower court which were without evidence to support them. They are material findings because they were among the facts considered by the lower court in determining that the libellee had treated the libellant with the intolerable severity that the court found was injurious to her health. It is, of course, impossible for us to determine the weight given to such unsupported facts by the lower court in reaching its determination on the matter of intolerable severity. It might be that the lower court would have reached the same conclusion on the issue of intolerable severity in the absence of these unevidenced findings of fact. But their inclusion in the record shows that they did enter into the consideration of the lower court and such consideration of facts without evidence to support them may have worked an injustice upon the libellee. Such inclusion in the findings of fact constituted prejudicial error on the part of the lower court.
The libellee also objected to the lower court's refusal to...
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...in the plaintiff's favor, and therefore in a legal sense it was unable to make a finding that an agreement existed. Strong v. Strong, 123 Vt. 243, 246, 185 A.2d 924 (1962); Scott's Executor v. Beland, 114 Vt. 383, 397, 45 A.2d 641 (1946). Since the burden of proof on this issue was with the......
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...upon this subject sufficient for a finding to be made to this effect. Crossman v. Crossman, 124 Vt. ----, 197 A.2d 818; Strong v. Strong, 123 Vt. 243, 246, 185 A.2d 924. Plaintiff's exception to the Chancellor's failure to find in accordance with her request that Fred Little was incompetent......
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Pacquin v. Pacquin
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