Wilman Souther v. Bettie Souther

• Decision Date: 07 October 1930
• Citation: Wilman Souther v. Bettie Souther, 151 A. 504, 103 Vt. 48 (Vt. 1930)
• Parties: WILMAN SOUTHER v. BETTIE SOUTHER
• Court: Vermont Supreme Court

151 A. 504

103 Vt. 48

WILMAN SOUTHER v. BETTIE SOUTHER

Supreme Court of Vermont

October 7, 1930

May Term, 1930.

Divorce---Insufficiency of Evidence To Support Finding---Recrimination---Evidence---Judicial Notice---Insufficiency of Facts To Constitute Bar in Recrimination in Absence of Essential Finding---Insufficiency of Findings To Establish Non-Support under G. L. 3560.

1. In divorce proceeding, finding that plaintiff had "been associating and keeping company with a woman other than his wife,"

with its apparently intended implication of moral delinquency, held unwarranted by evidence.

2. Acts of physical violence, by plaintiff in divorce proceeding toward his wife, consisting in horsewhipping her about six years before trial, and in slapping and choking her on other occasions, there being no act of physical violence on his part for about two years prior to the time he left her, where his wife continued to live with him as such for about five years after horsewhipping incident, and for about two years after last of any act of physical violence, and up to time of his leaving her intended to continue so to live with him held not to present sufficient legal grounds to constitute bar in recrimination.

3. When facts and circumstances are so decisive of actual or apprehended bodily harm resulting from mental suffering that there can be no difference of opinion about it, court may take judicial notice thereof; otherwise, such essential fact must be found in order to warrant decree of divorce.

4. In divorce proceeding, facts and circumstances reported held not of such decisive character as to constitute bar in recrimination, in absence of finding that actual or apprehended bodily harm resulted from mental suffering occasioned.

5. Finding that plaintiff in divorce proceeding had neglected his wife and family, that he had failed in some instances to provide sufficient and proper food and clothing, and that he finally abandoned home soon after his wife had recovered from a serious illness, held not to establish that plaintiff "grossly, wantonly, and cruelly" refused and neglected to provide suitable maintenance for wife as such terms are used in G. L. 3560, hence not showing recrimination.

PETITION FOR DIVORCE alleging intolerable severity and adultery. Defendant also filed a petition against plaintiff alleging intolerable severity. Trial by court at the September Term, 1928, Orleans County, Willcox, J., presiding Findings of fact were filed, and judgment that both petitions be dismissed. The plaintiff excepted both to findings and judgment. The opinion states the case.

Decree reversed, pro forma, and cause remanded for new trial.

Pierce & Miles for libelant.

Walter H. Cleary and David E. Porter for the libelee.

Present POWERS, C. J., SLACK, MOULTON, and THOMPSON, JJ., and GRAHAM, Supr. J.

OPINION

GRAHAM

This is a petition for a divorce alleging intolerable severity and adultery. The defendant also filed a petition for divorce against the plaintiff alleging intolerable severity. The cases were tried together at the September Term, 1928; findings of fact were filed, and judgment that both petitions be dismissed. The plaintiff brings this case before us on exceptions to the findings and to the judgment. The defendant filed no exceptions to the findings nor to the judgment dismissing her petition.

The parties were married in 1906, and have five children all of whom are self-supporting except the youngest child, who was eleven years old at the time of trial. The parties lived together as husband and wife on a farm in Lowell until the latter part of October, 1927, at which time the plaintiff left home, and they have not lived together since.

The findings show that the defendant's conduct of which the plaintiff complains consisted of her frequently absenting herself from home from one to three days at a time, leaving her husband and children, and without informing her husband where she was going, or when she was to return; visiting Canadian line houses; drinking intoxicating liquor to excess; and frequently associating with other men in the Lowell home and on trips to line houses, both in the daytime and in the nighttime. The findings also show that such conduct on the part of the defendant was a constant source of mental suffering to the plaintiff, which produced an injurious effect upon his health. The findings expressly state: "The acts of the wife complained about we find amount to intolerable severity and that were it not for the conduct of the husband himself, he would be entitled to a divorce." There being no exceptions by the defendant, the only question before us on the record is whether the findings as to the conduct of the plaintiff, which are supported by evidence, constitute, as a matter of law, a bar in recrimination.

Only one exception to the findings need be noticed. The court found: "The evidence also discloses that since he (the plaintiff) brought his petition for divorce he himself has been associating and keeping company with a woman other than his wife." This finding was excepted to as not warranted by the evidence. The evidence discloses that within a few weeks of the time of trial a woman employed in Newport rode with the plaintiff in his automobile from Newport to Lowell and return three times for the purpose of visiting a relative. On two of these occasions when at Lowell, the plaintiff with his son, who was then fifteen years of age, this woman, and the daughter of her Lowell relative, started for Smugglers' Notch. The first time they had car trouble and turned around and returned to Lowell, and on the following Sunday all went to Smugglers' Notch. With only this evidence to support it, we think that this finding with its apparently intended implication of moral delinquency was unwarranted, and the exception is sustained.

Without this finding, the conduct of the plaintiff toward the defendant, as shown by the facts found, consisted of his horsewhipping his wife in a most inhuman way about six years before the trial, and on other occasions he used violence upon her by slapping and choking her, but there was no act of physical violence on his part for about two years prior to the time he left home. Until the fall of 1927, the parties had lived together as husband and wife on such occasions as the defendant was at home, and up to the time the plaintiff left home, the defendant intended to continue to live with him as his wife. The plaintiff was in a large measure responsible for some of the conduct of his wife. He took her and one of the children to Canadian line houses; he first taught her to drink intoxicating liquor, and attempted to teach one...