Whitcomb v. Whitcomb., 588.

• Decision Date: 04 May 1948
• Docket Number: No. 588.,588.
• Citation: 58 A.2d 814
• Parties: WHITCOMB v. WHITCOMB.
• Court: Vermont Supreme Court

58 A.2d 814

WHITCOMB

v.WHITCOMB.

No. 588.

Supreme Court of Vermont.

May 4, 1948.

Exceptions from Franklin County Court; Cushing, Presiding Judge.

Action by Jessie R. Whitcomb against Lyle M. Whitcomb for divorce. To review the decree, libellee brings exceptions.

Decree affirmed.

P. L. Shangraw, of St. Albans, for plaintiff.

Sylvester & Ready, of St. Albans, for defendant.

Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

JEFFORDS, Justice.

In this action the libellant was granted a divorce on the ground that the parties have lived apart for three consecutive years without fault on the part of the libellant, the resumption of marital relations not being reasonably probable.

The petition alleged five different grounds for a divorce. At the start of the trial the libellee moved that the libellant be required to elect the ground on which she would proceed. This motion was denied and the case is here on the exception taken to this ruling of the court and on exceptions taken to certain findings of fact and the decree based thereon.

The rule is, subject to certain qualifications not here material, that a libellant has a right to state in his petition as many causes of divorce as he has and is not required to elect. He can take proof on all and if he proves any one ground, he is entitled to a divorce. 27 C.J.S., Divorce, §§ 11 and 106; 17 Am.Jur.Divorce and Separation, § 309. There was no error in the denial of the motion to require an election.

Exceptions were taken to four of the findings but in his brief the libellee complains only as to two of them. These are findings 11 and 12 which are as follows:

11. ‘The separation of the parties in 1938 was without fault on the part of the libellant and the continued separation has likewise been without fault on her part.’

12. ‘A fair distribution of the joint property of the parties is a cash payment by the libellee to the libellant of $7,000.00, she, in turn, to convey and assign all of her rights, title and interest in the joint property to the libellee.’

The grounds for the exception to number 11, as briefed, are, in substance, that it has no evidence to support it and that it is based on the uncorroborated testimony of the libellant.

From the undisputed evidence and from findings not excepted to the following facts appear. The parties were married in 1917. Shortly after the marriage the libellee entered the army. Upon his discharge the libellant and libellee lived in South Troy where the libellant worked for a public utility company. In 1934 the libellee served a term in the state's prison for the crime of adultery. Upon his discharge his wife met him and they went to live at the home of her mother in Sheldon. During the first year there things went well but during the second year the libellee drank, went away on three or four day unexplained trips and became cross and irritable. About July 4, 1938, the libellee left the home in Sheldon without telling his wife where he was going. Three or four days later he came back, took his automobile and did not return until some time in December of that year, when he came to get his clothes. He then left and the parties have not lived together since that time.

The libellee makes no claim, and upon the evidence could not, that the separation was brought about by any fault of the libellant. His claim is, in effect, that it was the duty of the wife to follow her husband to the house in Troy which they had purchased while living there and to which, the evidence tends to show, he went in December. This house had been purchased for $700. In December, 1938, it was occupied by two families and apparently continued to be so occupied up to the time of trial. The only room available for occupancy by the libellant and libellee was a storeroom in which furniture of the parties was stored. The libellee lived in this room while in Troy and had lived in several other places up to the time of trial.

The libellee testified that while in Troy he wrote his wife several times asking her to come there and live with him. The libellant denied receiving any letters from him. The court found, in effect, that no such letters were ever mailed by the libellee. An exception was taken to this finding but not being briefed is waived. But if briefed, the exception would have been of no avail as the finding was warranted by the evidence.

The libellee claims it can make no difference whether or not he requested the libellant to leave Sheldon and come to live with him, as from her own testimony it appears that she would not have gone though requested, and the libellee says the law does not require the doing of an useless act.

The evidence upon which the libellee relies in support of his claim that any request by him to his wife to go to Troy to live with him would have been useless is based on the testimony of the libellant during her cross examination. She stated that at the time of the separation in December she said ‘If you want anything of me I will be here’ and that the libellee replied ...