Yergeau v. Yergeau

• Decision Date: 31 January 1990
• Docket Number: No. 88-440,88-440
• Citation: 569 A.2d 237,132 N.H. 659
• Parties: Armand YERGEAU v. Doris YERGEAU.
• Court: New Hampshire Supreme Court

Page 237

569 A.2d 237

132 N.H. 659

Armand YERGEAU v. Doris YERGEAU.

No. 88-440.

Supreme Court of New Hampshire.

Jan. 31, 1990.

Bruce F. Dalpra, orally and on the brief, and Elizabeth Cazden, orally, Manchester, for plaintiff.

Brennan & Caron P.A., Manchester (Michael J. Iacopino, on the brief and orally), for defendant.

SOUTER, Justice.

This appeal raises issues of law, evidentiary sufficiency and adequacy of findings underlying a decree of divorce for adultery and an award of alimony by the Superior Court (Murphy, J.; Alice S. Love, Esq., Master). We affirm.

For most of the time between the parties' marriage in 1950 and their divorce in 1988, the plaintiff, Armand Yergeau, worked as a fireman, while the defendant, Doris Yergeau, devoted herself to caring for their three children and holding part-time jobs. After the plaintiff's retirement in 1986, he began a painting and papering business, from which he netted $20,000 in the year preceding the divorce. At the time of the hearing the defendant continued to work, although she testified that she was limited to part-time employment by medical problems that included hearing abnormalities, susceptibility to ear infections and ulcers.

For at least the last five years of the parties' relationship, the plaintiff was an alcoholic, and in 1986 he joined Alcoholics Anonymous (AA), at whose meetings he met a woman who soon became a close friend. By late 1987 the parties' marriage was clearly deteriorating, and at a New Year's Eve gathering at the end of that year, the plaintiff's expressions of interest in other women led the defendant to mention the possibility of divorce. In mid-January of 1988 the defendant went to Florida alone on a vacation paid for as a gift by the plaintiff, and upon her return in early February the plaintiff told her that he wanted a divorce. That same evening, he told the parties' daughter, in the defendant's presence, that he loved another woman, and the next morning he left the house. The plaintiff testified that the defendant physically threw him out on this occasion; the defendant denied this. In any case, the plaintiff returned to the marital home nine days later, and although he told the defendant that she would hate him for what he had done, the parties agreed to try to preserve their marriage. On March 15, 1988, however, the plaintiff executed a libel seeking divorce for irreconcilable differences, RSA 458:7-a, and on March 16 he left the house with his personal belongings.

The defendant understood that the plaintiff's relationship with his friend from AA was the impetus for his wish to end the marriage, and the defendant testified that at that point, after enduring years of the plaintiff's alcoholism, she would not accept defeat from another woman. She took to observing the plaintiff and his friend as they went to AA meetings together, and later in the evenings she would drive to a spot where she could see the plaintiff's truck parked in front of the other woman's apartment building. Although the defendant would go home to sleep for a few hours, she would return again, always finding the truck parked in the same place at 6:30 or 7 A.M. She reacted with tears and what she herself described as the behavior of a robot, until in April, 1988, she filed a cross libel for divorce on the ground of adultery, RSA 458:7, II, and named the other woman as co-respondent. Thereafter the plaintiff and the co-respondent lived together.

After trial, the master recommended entry of a decree of divorce on the basis of the plaintiff's adulterous fault. In so rejecting the no-fault ground of irreconcilable differences invoked by the plaintiff's own libel, the master in effect found adultery to be the "primary cause of the marital breakdown." Ebbert v. Ebbert, 123 N.H. 252, 254, 459 A.2d 282, 284 (1983).

The plaintiff challenges this determination, arguing that there was no adequate circumstantial evidence, see Jeanson v. Jeanson, 96 N.H. 308, 309, 75 A.2d 718, 719 (1950), that he engaged in adultery with the co-respondent prior to his second and final departure from the marital residence after executing his libel for divorce. From this he argues that the adultery cannot reasonably be found to have caused the breakdown of the marriage, upon which any divorce must be predicated.

In addressing this position, it is well to be clear at the outset that under existing case law there is no set of facts on which the plaintiff could be said to have been entitled as a matter of law to a divorce on grounds of irreconcilable differences at the time of the March separation when he signed his libel. This is true not merely because marital breakdown and its irremediability are issues of fact, see Desrochers v. Desrochers, 115 N.H. 591, 594, 347 A.2d 150, 153 (1975); Woodruff v. Woodruff, 114 N.H. 365, 367, 320 A.2d 661, 663 (1974), but because any finding that such breakdown is irremediable must be made by a court, and only after "the possibilities of reconciliation have been explored and have failed," Woodruff, 114 N.H. at 368, 320 A.2d at 663, as mandated by RSA 458:7-b. Indeed, whenever § 7-b is applicable, a court's obligation to determine primary causation from two or more causes for divorce, see Ebbert v. Ebbert, 123 N.H. at 254, 459 A.2d at 284, can never be discharged by mechanically determining which accrued first in time. It was, therefore, incumbent on the master to enquire into the primacy of causation as a factual issue.

In assessing the causation evidence in a case like this one, it is, of course, true that "a period of separation due to marital difficulties is strong evidence of irremediable breakdown ... [as against which] the desire of one spouse to continue the marriage is ... not a bar to divorce," Desrochers, 115 N.H. at 593-94, 347 A.2d at 152. It is likewise true that the facts in a given case may indicate that the primary cause of the breakdown was incompatibility manifested by a separation occurring prior to any infidelity, see Murano v. Murano, 122 N.H. 223, 229, 442 A.2d 597, 600-01 (1982). But it is equally within the ambit of factual possibility in such a case that "the desire of one spouse to continue the marriage is evidence of 'a reasonable possibility of reconciliation,' " Desrochers, 115 N.H. at 594, 347 A.2d at 152, which is only eliminated by the other spouse's subsequent fault. In a case of this latter type, it is appropriate for the court to find the subsequent fault to be the primary cause of the ultimate marital breakdown and to decree a divorce accordingly.

This is exactly what we understand the master to have found in the case before us. In expressly accepting the defendant's evidence that she repeatedly saw the plaintiff's truck parked at...