Swist v. Swist

• Decision Date: 28 February 1928
• Court: Connecticut Supreme Court
• Parties: SWIST v. SWIST.

140 A. 820

107 Conn. 484

SWIST v. SWIST.

Supreme Court of Errors of Connecticut.

February 28, 1928

Appeal from Superior Court, New Haven County; Earnest C. Simpson Judge.

Action by Frank Swist against Ethel Marx Swist for a divorce on the ground of intolerable cruelty. Tried to the court. Judgment for plaintiff, and defendant appeals. No error.

Philip Troup, of New Haven, for appellant.

Philip Pond and Nathan G. Sachs, both of New Haven, for appellee.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS JJ.

HAINES, J.

The defendant-appellant asks numerous changes in the finding and brings before us all the evidence for our inspection. She first requests (a) that 12 specified paragraphs of the finding be stricken out. These all relate to claimed acts of cruelty on the part of the defendant, and in large part are based on the plaintiff's own statements upon the stand, some of them supported more or less fully by the plaintiff's witnesses, and nearly all of them flatly contradicted by the defendant herself. It is apparent from reading the entire evidence that the trial court believed the plaintiff and disbelieved the defendant. A check of each of these findings shows none of which is not supported by some evidence, and the claim to strike out cannot therefore be granted.

The second request (b) seeks to substitute 13 paragraphs of the draft finding for 12 of the paragraphs of the finding. These relate to the description of the parties, their marriage, and various particulars of their life together, their separation and subsequent events. Some of these are purely evidentiary and many are of little importance in their bearing on the main question. The matter sought to be substituted is essentially the defendant's version of the same incidents. In so far as additional facts are furnished, we find none of sufficient importance to require their addition. As in the first claim (a) the trial court found it necessary to decide whether the plaintiff's or the defendant's version was the more credible, and accepted that of the plaintiff, and the transcript of testimony discloses evidence in each instance to support the finding. Such deductions as the trial court has incorporated in these paragraphs are logically and reasonably drawn from the subordinate facts. We would not be justified in granting this request, with the single exception of that portion of the fifth paragraph which relates to the defendant's separation from her first husband. This is not supported by evidence and is stricken out.

The third request (c) is to strike paragraph 10 from the finding, which is the substance of the plaintiff's testimony concerning the preparation of the family meals, and it is again sought to substitute the defendant's own statement of that matter. These findings are supported by the testimony of the plaintiff and his witnesses, and we must accept it as the trial court's decision of the question of credibility. It is beyond our province to weigh evidence and decide questions of this character. Dexter Yarn Co. v. American Fabrics Co., 102 Conn. 529, 537, 129 A. 527; Hoadley v. Savings Bank of Danbury, 71 Conn. 599, 609, 42 A. 667, 44 L.R.A. 321; Atwater v. Morning News Co., 67 Conn. 504, 525, 34 A. 865; Styles v. Tyler, 64 Conn. 432, 450, 30 A. 165.

The fourth request (d) as to what was " noticed" in regard to the condition of the house is unimportant, and the same is true of the sixth request (f).

The fifth request (e) is that the words, " so far as appeared never abused his wife," be stricken out. While a finding in this form is objectionable, its inference is supported by the testimony of both the parties and others, and so far as we can find, nowhere disputed.

The remaining reasons of appeal raise two questions for our consideration: One of these is whether the trial court could legally include in the finding subordinate facts which are " not averred in the complaint and more specific statements of the plaintiff," thus making such facts the basis in part for the judgment rendered. It is pointed out, and with truth, that the facts found as to the defendant's neglect of her personal appearance and of the home, the improper care of the children, her public verbal abuse of the plaintiff, and her refusal to cohabit, are not specifically referred to in the complaint and more specific statement of the plaintiff. It is the contention of the defendant that this should remove at least ten of the paragraphs of the finding as erroneous, and Greenthal v. Lincoln, Seyms & Co., 67 Conn. 372, 35 A. 266, is cited in support of that claim. In that case we stated a fundamental rule to the effect that a judgment supported by facts which are not involved in the issues raised by the pleadings is erroneous, and that the losing party may assert and take advantage of such error even though no demurrer was filed or objection offered to the evidence. The facts referred to in the present case were based upon evidence which came in without objection, and it was evidence which was relevant to the issue of intolerable cruelty alleged in the complaint and specifically denied in the answer, thus raising that issue in its entirety. But whatever advantage could have been taken of this situation by seasonable action in the trial court, it has clearly been waived by failure to do so. Further, the defendant cross-examined the plaintiff's witnesses and produced witnesses of her own upon these matters; nor was any motion made to strike the evidence from the record. She not only did not object to the making of findings on this ground, but asked for the insertion of her own version of them, and she now raises an issue not brought to the attention of or ruled upon by the trial court.

Going to trial without objection waives a too general statement of the cause of...