Witte v. Witte, 15979

• Decision Date: 12 April 1984
• Docket Number: No. 15979,15979
• Court: West Virginia Supreme Court
• Parties: Helen Elaine WITTE v. Henry Charles WITTE.

Page 246

315 S.E.2d 246

173 W.Va. 281

Helen Elaine WITTE v. Henry Charles WITTE.

No. 15979.

Supreme Court of Appeals of West Virginia.

April 12, 1984.

Syllabus by the Court

1. "What constitutes cruel and inhuman treatment as a ground for absolute divorce under Code, 48-2-4, depends on the circumstances of each particular case." Syllabus, McLaughlin v. McLaughlin, 126 W.Va. 498, 29 S.E.2d 1 (1944), quoting Syllabus Point 1, Thacker v. Thacker, 23 S.E.2d 64 (1942).

2. " 'A divorce decree that lacks evidence to establish the ground upon which divorce was sought will be reversed.' Point 1, Syllabus, Harbert v. Harbert, 130 W.Va. 704, [45 S.E.2d 14 (1947) ]." Syllabus Point 4, Smith v. Smith, 138 W.Va. 388, 76 S.E.2d 253 (1953).

3. Rule 52(a) of the West Virginia Rules of Civil Procedure requires a trial court in a divorce proceeding to state on the record findings of fact and conclusions of law which support its decision. A divorce decree which does not comply with this mandatory requirement may be remanded for compliance.

Robert H. Burford, Beckett, Burford & James, Huntington, for appellant.

R.R. Fredeking, II, Fredeking & Fredeking, Huntington, for appellee.

McGRAW, Justice:

This is an appeal by Henry Charles Witte from a final decree of the Circuit Court of Cabell County, entered November 9, 1982, granting a divorce to Helen Elaine Witte on the ground of cruel and inhuman treatment. Mr. Witte contends that the finding of cruelty was not supported by the evidence or by proper findings of fact and conclusions of law. We agree, and we reverse the judgment of the circuit court.

At the time of the final hearing, Mr. and Mrs. Witte, then 63 and 58 years old, respectively, had been married for fourteen years. No children were born of this union, but Mrs. Witte had three sons from a previous marriage. At Mr. Witte's suggestion, Mrs. Witte had quit her job shortly after the marriage and moved into his home with two of her children, the younger of whom was 19 or 20 years old. These children lived with the Wittes for approximately two years. In 1969, Mrs. Witte suffered a nervous breakdown, which required frequent hospitalization until 1974. In 1978, Mr. Witte was forced to retire from his job due to the progression of multiple sclerosis, a degenerative disease of the central nervous system. At the time of the hearing, he was able to walk only with the use of two canes and used a wheel chair to move about indoors.

In April 1982 Mrs. Witte filed a petition for divorce on grounds of "extreme and repeated mental cruelty" by Mr. Witte and of irreconcilable differences. Mr. Witte responded, denying the allegations and requesting dismissal of the petition. The final hearing was conducted on September 9, 1982.

The basis of Mrs. Witte's complaint was that Mr. Witte harangued her about spending too much money, that he resented her children and refused to provide money for their clothing and college educations, and that his constant criticism of her spending habits, her children and her performance of household duties had led her to a state of continuous emotional upset and a fear for her safety which had rendered continued cohabitation unendurable. Mr. Witte admitted that he did not believe in spending money foolishly and that he had become more irritable since he had been disabled, but denied having harassed his wife about her expenditures or her children.

At the conclusion of the hearing, the circuit court found that "the defendant has been guilty of cruel and inhuman treatment of and towards the plaintiff." The final decree, entered November 9, 1982, awarded Mrs. Witte possession of the marital residence and alimony in the amount of one-half of Mr. Witte's monthly income. The order further provided for disposition of the parties' tangible personal property and for the restoration to Mrs. Witte of her former married name.

Mr. Witte contends that the evidence does not support the granting of a divorce on the ground of cruelty. W.Va.Code § 48-2-4(a) (1983 Cum.Supp.) provides that a divorce may be granted:

(4) For cruel and inhuman treatment by either party against the other, which includes reasonable apprehension of bodily harm, false accusation of adultery or homosexuality, conduct or treatment which destroys or tends to destroy the mental or physical wellbeing, happiness and welfare of the other and render continued cohabitation unsafe or unendurable: Provided, that under no circumstances shall it be necessary to allege or prove acts of physical violence in order to establish cruel and inhuman treatment as a ground for divorce, (Emphasis added.)

What constitutes "cruel and inhuman treatment" under this section depends on the circumstances of each particular case. McLaughlin v. McLaughlin, 126 W.Va. 498, 29 S.E.2d 1 (1944); Thacker v. Thacker, 125 W.Va. 103, 23 S.E.2d 64 (1942). See also Persinger v. Persinger, 133 W.Va. 312, 56 S.E.2d 110 (1949). The burden is on the party alleging cruel and inhuman treatment to prove those allegations by a preponderance of the evidence. See Lieberman v. Lieberman, 142 W.Va. 716, 98 S.E.2d 275 (1957); Smith v. Smith, 125 W.Va. 489, 24 S.E.2d 902 (1943). As in all proceedings under W.Va.Code, § 48-2-4 a divorce on grounds of cruel and inhuman treatment will not be granted "on the uncorroborated testimony of the parties or either of them". W.Va.Code § 48-2-10 (1980 Replacement Vol.).

We do not think the evidence in this case demonstrates "cruel and inhuman treatment"...