Winslow v. Winslow
| Decision Date | 11 February 1969 |
| Docket Number | No. 1116,1116 |
| Citation | 127 Vt. 428,251 A.2d 419 |
| Parties | Eugene Clinton WINSLOW v. Katharine Holloway WINSLOW. |
| Court | Vermont Supreme Court |
John S. Burgess, Brattleboro, for plaintiff.
Fitts & Olson, Brattleboro, for defendant.
Before HOLDEN, C. J., SHANGRAW, BARNEY and KEYSER, JJ., and DALEY, Superior Judge.
This is an action of divorce brought on the ground of intolerable severity, under 15 V.S.A. section 551(3), and also on the ground that the libellant has lived apart from the libellee for three consecutive years without fault on his part and that the resumption of marital relations is not reasonably probable. 15 V.S.A. section 551(7).
Partial hearing was held in the Windham County Court on October 20, 1967 and continued to the final hearing held on November 27, 1967. Findings of fact were filed January 29, 1968. A decretal order was issued April 2, 1968 granting a divorce to the libellant on each of the foregoing requested grounds. Libellee has seasonably appealed to this Court for review.
Notice of appeal from the decree brings the whole case, including all questions litigated in the court below which affect the final decree, if they are briefed, to this Court for review. Century Idemnity Co. v. Mead, 121 Vt. 434, 436, 159 A.2d 325.
The Findings of Fact reveal that the parties were married in Kingston, Rhode Island on May 28, 1942 and have five children. During 1964 the libellant had been on the faculty of the University of Rhode Island for eighteen years starting as an instructor in chemistry and eventually becoming a full professor of chemistry.
In 1964 the libellant took a one year leave of absence from the above university to accept the position as President of Windham College in Putney, Vermont, which office he now holds. In the summer of 1964 he taught at the University of Rhode Island summer school and commuted to Putney week-ends until August 15, 1964 when summer school ended, during which time he came to Putney and stayed during the week and returned to his home in Rhode Island week-ends. In August of 1964 the marital relationship of the parties ceased.
On September 9, 1964 the libellant returned to Rhode Island and on behalf of the libellee was served with papers for separate maintenance returnable in Washington County, Rhode Island. This action is now pending. Libellee is presently residing with four of their five minor children in Kingston. The oldest child, Holly is married.
The libellee first contends that the finding of the trial court that 'the libellee treated the libellant at divers times with intolerable severity' is not supported by the findings and the evidence.
The well-established rule in this jurisdiction is that to constitute intolerable severity the acts and conduct of the offending spouse must be of such aggravated nature that the health of the innocent spouse is threatened to the point of present and imminent danger. Mathewson v. Mathewson, 81 Vt. 173, 179, 69 A. 646; Souther v. Souther, 103 Vt. 48, 52, 151 A. 504; Gilbert v. Gilvert, 123 Vt. 200, 202, 185 A.2d 460.
The critical question is, therefore, whether there was any misconduct on the part of the libellee and, if so, did it cause or threaten injury to the life, limb, or health of the libellant, either as a direct result of such misconduct, or produced by grief, worry, or mental distress occasioned thereby. See Souther v. Souther, supra, 103 Vt. page 52, 151 A. 504.
By Finding 13 the court found 'That difficulties in the marriage first occurred in the spring of 1964 and as a result thereof the libellant became tense, upset, nervous, had stomach pains and jumpy, but since the parties have separated the libellant's health has improved and he is full of life as of this time and is no longer nervous, upset or has stomach pains.'
The court also found by Finding 23 'That prior to August 1, 1964 the marriage of the parties was unhappy; the parties had had arguments and the libellee had threatened and pretended in 1964 to commit suicide, and were incompatible.'
While the court found that the libellant was nervous, upset and had stomach pains, it did not find that libellant's condition was the result of any acts or misconduct of the libellee. The court only found it was the result of difficulties in the marriage.
There is no finding pointing up the nature of the difficulties, what caused them, or by whose fault, they arose. These difficulties which apparently resulted in an unhappy marriage could, for ought that appears, just as well have been the conduct or fault of the libellant as of the libellee. An unhappy marriage is not, without more, so severe in and of itself that jeopardy to health is an inevitable consequence.
Aside from what is said in Finding 23 there are no findings of any marital misconduct on the part of the libellee. A threatened and pretended suicide by the libellee is not an act directed toward or against the libellant but rather to herself. In addition the court did not find that this pretention had any adverse physical affect on the libellant or was even believed by him. To the contrary, the evidence showed that he was aware that the pills being taken by his wife were harmless. Further, he testified 'I don't think she had any suicidal intention at all.'
There is no finding or suggestion in the findings of any bodily harm to the libellant, either actual or threatened, or any mental suffering, caused by any misconduct of the libellee.
The burden was on the libellant to establish persistent conduct, or fault, on the part of the libellee leading to intolerable severity. Such proof was a necessary ingredient to support the claim of intolerable severity. Essential affirmative findings are lacking on this vital issue and are necessary to warrant a decree of divorce on that ground. Mathewson v. Mathewson, supra, 81 Vt. at page 178, 69 A. 646.
Moreover, the findings fall short of showing that libellant's health was 'threatened to the point of present and imminent danger.' The only finding is that the libellant 'became tense, upset, nervous, had stomach pains and jumpy.'
After the separation the libellant's health improved and he was 'no longer nervous, upset or had stomach pains.' But this finding, as said in Gilbert v. Gilbert, supra, 123 Vt. at page 202, 185 A.2d at page 461 'does not mean the prior cohabitation had threatened the health of the innocent spouse to the point of present or imminent danger.'
Apart from being nervous and upset there are no findings, or evidence, to show an impairment, actual oir threatened, to the libellant's health, or of any mental suffering caused by the libellee's conduct. The fact and circumstances are indecisive of an actual or apprehended bodily harm.
To overcome the failure of the trial court to make a determination of an actual or threatened impairment of health favorable to the libellant, the facts and...
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