Poe v. Poe , 149 Ark. 62 ( 1921 )

Hart, J.

(after stating the facts). The grounds for divorce are statutory merely. Among other causes our statute provides tliat the chancery court shall have power to dissolve and set aside a marriage contract where either party shall be guilty of such cruel and barbarous treatment as to endanger the life of the other, or shall offer such indignities to the person of the other as shall render his or her condition intolerable. Crawford & Moses’ Digest, § 3500.

In the first place, it may he said that the remedy of divorce, under this clause of our statute, is for evils which are unavoidable and unendurable, and which can not he relieved by reasonable exertion by the parties seeking the aid of the courts. Meffert v. Meffert, 118 Ark. 582.

In the second place, it may be said that the main grounds relied upon by the plaintiff in support of his hill for divorce is cruel treatment by his wife to his children by his first wife.

In discussing similar statutes, it is generally held by text writers that mistreatment of a stepchild in itself alone will not afford grounds for a divorce. It is only where the cruelty toward the child is habitual or exercised with the intent of causing suffering to the parent that a cause of divorce on this account will arise. Bishop on Marriage, Divorce and Separation, § 1586; Nelson on Divorce and Separation, § 301; 9 E. C. L., § 129, p. 347; 19 C. J., p. 50; Barker v. Barker (Okla.), 26 L. R. A. (N. S.) 909; Friend v. Friend, 53 Mich. 543; Melvin v. Melvin, 130 Penn. St. Repts., p. 6, and Rigsby v. Rigsby, 82 Ark. 278.

The stp-nmother miirht he vuiltv of great cruelty to her stenchildren, and yet not he a-uiltv in that respect to her husband. This is well illustrated in the present case. According to the testimony of the children and of the father, the stepmother had a very violent temper which she could not control, and when she got mad she would whip them with the first thing she got her hands on. The whippings were all done in the absence of the husband, and, according to the testimony of the children themselves, their stepmother whipped them only when she became mad at them. The stepmother denies having whipped them too severely at any time. If the testimony of the children is to be accepted, it does not show that the stepmother whipped them because she was mad at their father and intended by so doing to make him suffer. The children testified that for the most part she treated them kindly. So it may be said that the plaintiff has failed in the respect just set forth to establish any grounds for divorce under the statute. The testimony showed that, on account of their difference in religion, the mistreatment of plaintiff’s children by his first wife by the defendant and from other causes, their marriage was an unhappy one. Our statute, however, has not made these things a ground of divorce, and the parties must bear the consequences of having made an unwise marriage.

Therefore the chancellor was right in dismissing the plaintiff’s complaint for want of equity.,

No point is specially made on the fact that the chancellor allowed the defendant alimony in the sum of $20 per month. This allowance was in the usual form, “until the further orders of the court.” It does not appear from the record that the allowance was too much. In the • absence of any showing to that effect, it must be presumed that the allowance was fair, and it will not be disturbed until the changed condition of the parties malíes it necessary for the chancellor to' alter or modify it.

It follows that the decree must be affirmed.