Weber v. Weber

• Decision Date: 13 May 1974
• Docket Number: No. 74--3,74--3
• Citation: 256 Ark. 549,508 S.W.2d 725
• Parties: James R. WEBER, Appellant, v. Mildred Anne WEBER, Appellee.
• Court: Arkansas Supreme Court

Page 725

508 S.W.2d 725

256 Ark. 549

James R. WEBER, Appellant, v. Mildred Anne WEBER, Appellee.

No. 74--3.

Supreme Court of Arkansas.

May 13, 1974.

Laser, Sharp, Haley, Young & Boswell, Little Rock, for appellant.

Jack L. Lessenberry, Little Rock, for appellee.

FOGLEMAN, Justice.

Mildred Anne Weber and Dr. James R. Weber were married October 3, 1964, in Jacksonville, Arkansas, where James Weber engaged in the general practice of medicine. They have one child, Dana Elizabeth, now aged eight years. On January 31, 1973, Mrs. Weber filed suit for divorce, alleging indignities to her person as grounds. She specified abuse, ridicule and neglect as elements of the charge. She asked for alimony, property distribution and custody of the child. Dr. Weber filed an answer denying Mrs. Weber's allegations, counterclaimed for divorce on the same grounds and also sought custody of the minor child. On July 8, 1973, the chancellor granted Mrs. Weber's prayer for divorce, awarded custody of the minor child to the mother and awarded alimony and child support. For reversal, appellant contends that the decree granting the divorce and dismissing his counterclaim was against the preponderance of the evidence. We do not agree and affirm the decree.

The burden was upon appellant to demonstrate error in the chancellor's findings. Hendrix v. Hendrix, 256 Ark. ---, 506 S.W.2d 848 (1974); Holt v. Holt, 253 Ark. 456, 486 S.W.2d 688; City of Little Rock v. Sunray DX Oil Co., 244 Ark. 528, 425 S.W.2d 722. We will not reverse them unless they are clearly against the preponderance of the evidence. Hampton v. Hampton, 245 Ark. 579, 433 S.W.2d 149; Hendrix v. Hendrix, supra; Williams v. Campbell, 254 Ark. 592, 495 S.W.2d 512; Marine Mart v. Pearce, 252 Ark. 601, 480 S.W.2d 133. Where, as here, there are sharp conflicts in the testimony which must be resolved, to a considerable extent, upon evaluation of the credibility of witnesses we must defer to the judgment of the trial judge because of the superiority of his position in making that determination. Green v. Owens, 254 Ark. 574, 495 S.W.2d 166; Marine Mart v. Pearce, supra; Dodds v. Dodds, 246 Ark. 313, 438 S.W.2d 54; Hampton v. Hampton, supra.

The evidence presented in behalf of appellee related to alleged incidents of physical abuse, appellant's association with one of his nurses, allegedly false accusations of appellee made by Dr. Weber, and conduct on his part which was embarrassing to Mrs. Weber. Appellant contends that the testimony showed nothing more than incompatibility, that it was not sufficiently corroborated and that any misconduct on his part had been condoned by appellee. We do not agree with any of these contentions. We state the testimony, insofar as plausible, in generalities, endeavoring to avoid details, because we feel that the best interests of the parties and their young daughter, whose custody is involved, require no more. Mrs. Weber told of two instances when violent conduct on the part of Dr. Weber caused her to flee to homes of neighbors. On the later occasion she said that he inflicted bruises and that he subsequently came to the neighbor's home and pursued the quarrel. The most critical incident in the breakup of the marriage occurred in October 1972, when a 20-year-old nephew and Mrs. Weber were visiting and Dr. Weber, having left the house after dinner, returned about 10:30 and found Mrs. Weber and her nephew alone together. The versions of the witnesses as to what had occurred are sharply conflicting. Her version was that the doctor was intoxicated, made unfounded accusations, threatened to kill her, the nephew and her brother, the nephew's father, and administered a severe beating over a period she estimated to be 20 or 30 minutes, and then left the house. She said there were other instances when Dr. Weber inflicted physical violence upon her. According to her, Dr. Weber had consulted a psychiatrist after the first incident. She related that about the time of the final separation, January 23, Dr. Weber told her, after they had left a conference with his attorney at which she had refused to sign a settlement proposal made by the doctor, that he would kill her if she tried to see her brother or an attorney. She told of having seen her automobile, then being driven by her husband, parked after midnight, on two occasions, at the home of a nurse employed by him. She claimed to have met the two when they were returning in a motor vehicle from a farm in which Dr. Weber was interested and said that they were sitting unusually close together.

We deem this testimony, viewed as a whole, sufficient to constitute the grounds for divorce alleged by appellee, if her testimony was believed. The corroboration need be only slight in this case, because no one could ever assert that this bitterly contested case was collusive. Lewis v. Lewis, 255 Ark. ---, 502 S.W.2d 505 (1973); Morlan v. Morlan, 255 Ark. ---, 502 S.W.2d 628 (1973).

Mrs. Weber's brother recalled a telephone call by the doctor in October 1972, threatening to kill both the brother and his son and accusing Mrs. Weber and her nephew of misconduct. He described his sister's appearance when he saw her five or six days later as shocking, because of the extent and number of bruises about her body. Dr. Ernest Harper recalled examining Mrs. Weber about this time and finding numerous bruises. A lady who attended a therapy group with Mrs. Weber recalled seeing her with a black eye and bruised face in October 1972. Dr. Weber admitted having struck Mrs. Weber and inflicting bruises, but said that it was done in anger attributable to his surprising appellee and her nephew in shocking misconduct. He denied beating her. Another witness, formerly employed by Dr. Weber stated that the doctor had said his wife had been guilty of adultery. Dr. Weber admitted he had accused his wife of adultery on the basis of suspicion only.

On the occasion of a Christmas visit in 1970, Mrs. Weber's mother recalled having seen bruises about her daughter's face and arm, which appellee said were inflicted by appellant. This witness said her daughter expressed her fear of her husband on this occasion. The mother said that, in her presence, Dr. Weber generally treated his wife in a very degrading, condescending, brutal manner, and she gave illustrative instances. This, according to the witness, was very embarrassing, both to her and her daughter. Appellee's father also observed his daughter's black eye about Christmas 1970. He testified he had noticed a strained marriage relationship over a two-year period. He thought Dr. Weber was too harsh with appellee and too demanding of her. There was also substantial corroboration by the neighbor to whose home Mrs. Weber went on her second flight.

While appellant points out conflicts in the testimony on behalf of appellee, and argues forcefully about the credibility and weight which should be accorded it, we are in no position to say the chancellor erred in these matters.

Appellant contends his misconduct was condoned. Condonation seems to have been first asserted by him in his brief on appeal. We find no intimation that appellant was relying on this defense in the trial court. Be that as it may, we do not find that there was a condonation as a matter of law. Appellant relies upon appellee's admission that the two might have slept together once or twice after her having been beaten by Dr. Weber in October of 1972. This could, of course, constitute evidence of condonation. But standing alone, it is not enough. An act of sexual intercourse after an act of cruelty is evidence of condonation, but is not conclusive unless wholly voluntary on the part of the injured spouse. Buck v. Buck, 205 Ark. 918, 171 S.W.2d 939. Continued cohabitation will condone acts of cruelty, but there are exceptions where the life or health of the innocent party is involved, or where cohabitation is continued in the hope of better treatment. Shirey v. Shirey, 87 Ark. 175, 112 S.W. 369. The rule is somewhat relaxed when the wife is the innocent party because of the greater difficulty of her withdrawal from the marital domicile attributable to her greater dependence upon the husband for protection and support. Shirey v. Shirey, supra. We refused to apply the rule when the wife testified that her living with her husband as man and wife after a separation was not due to a reconciliation but for the purpose of obtaining the custody of her child. Greer v. Greer, 193 Ark. 301, 99 S.W.2d 248. If the testimony of Mrs. Weber is believed, and it is obvious the chancellor did believe it, we would not be justified in reversing this decree on the ground of condonation.

Mrs. Weber testified she remained in bed all the next day after the October 1972 beating. She said she then discovered that her car keys were missing, so she remained in bed several days before going to see Dr. Harper, because she knew she had to wait until her husband left on a planned trip to California. She stated she consulted an attorney on the same day she saw Dr. Harper, but did not advise Dr. Weber of her seeking legal assistance because he had threatened to kill her if she did. When Dr. Weber came back from California, he returned to the residence where the parties had lived, but not to their bedroom, according to Mrs. Weber. She said he slept in a back room, that their relationship was very strained and that she tried to stay out of his way and to avoid their sleeping together. She justified her remaining in the home and the occasions when the two slept together by stating her desire to wait until after Christmas to separate in the interest of her daughter. She said that over a two-year period she had been afraid to leave Dr. Weber because of her fear that he would hurt her if she did. The actual separation did not take place until January 23, 1973. She explained that Dr. Weber had already taken an apartment, but told her that he would not move out until s...