Purcell v. Purcell , 101 Conn. 422 ( 1924 )

Unless the finding be materially corrected it cannot reasonably be claimed that the judgment was not properly rendered for the defendant.

The plaintiff seeks to have the finding corrected by exceptions taken to certain facts found, and to the failure to find certain facts as requested by her; and the testimony given by each of the parties has been duly made a part of the record to aid in securing these corrections. An examination of the evidence printed fails to disclose that the court found any fact without evidence, or that it failed to find any material facts which were admitted or undisputed facts.

The main complaint of the plaintiff is, in substance, that the trial court did not attach the weight to the testimony of the plaintiff that she deemed it entitled to. But it is not a permissible ground of appeal that the court found a fact against the weight of the evidence.

The conclusions of the Superior Court from the subordinate facts found, to the effect that the defendant was neither guilty of intolerable cruelty nor of habitual intemperance, were not erroneous, either as illegal or illogical conclusions.

The subordinate facts found as to intoxication, as set forth in the statement of facts, do not disclose that the defendant's use of intoxicants was so gross as to produce want or suffering in the family, either objective or subjective, to a degree which could not reasonably be borne, or which disqualified the defendant from attending to his business; under these circumstances, the conclusion that the subordinate facts did not establish habitual intemperance, cannot be held to be illegal or illogical. Dennis v. Dennis, 68 Conn. 192,36 A. 34.

The subordinate facts as to his conduct which are claimed to have established intolerable cruelty, show acts of cruelty, but fail to show so conclusively that we can hold as a matter of law that their cumulative effect upon the wife had become such that the public and personal objects of matrimony had been destroyed beyond rehabilitation, and the continuance of the marriage relation made unbearable because of them. As we said in McEvoy v. McEvoy, 99 Conn. 427,122 A. 100: "It is only when the cumulative effect of the defendant's cruelty upon the suffering victim has become such that the public and personal objects of matrimony have been destroyed beyond rehabilitation, that the condition of fact contemplated by the intolerable cruelty clause of the statute . . . should be found to exist." The fact that the plaintiff expressed a willingness to again live with the defendant shortly after she left him in August, 1923, practically establishes that the court did not illegally or illogically arrive at the conclusion that the plaintiff had failed to sustain the charge of intolerable cruelty. Van Guilder v. VanGuilder, 100 Conn. 1, 122 A. 719.

The plaintiff claims that the trial court misconstrued the effect of the condonation by the plaintiff of the misconduct of the defendant in 1921. She claims that the trial court held that such misconduct amounted to a ground of divorce which she condoned, and she insists that such condonation was annulled by her testimony tending to show intolerable cruelty after the condonation. Assuming — what the record does not show — that the cruel conduct of the defendant in 1921, which was condoned by the plaintiff, furnished her a ground of divorce, it was necessary, in order to annul that condonation and re-establish that cruelty as a ground of divorce, to prove that the defendant after the condonation was guilty of cruelty or other marital offense which furnished the plaintiff an independent ground of divorce. This the plaintiff failed to do. Bagdan v.Bagdan, 100 Conn. 521, 123 A. 841. The finding discloses that, after the so-called condonation, the defendant was not guilty of any conduct which gave the plaintiff a new ground of divorce.

There is a claimed error as to a ruling upon the admission of evidence. The plaintiff on the trial, in the cross-examination of the defendant, produced a letter which the defendant admitted he had received by mail from a woman friend, and offered it in evidence, and, upon objection, stated the ground of her offer as follows: "We want to show and hope to show by this letter . . . that the defendant was having intimate relations with another woman." The contents of this letter were merely the hearsay statements of a third person, and further were claimed to relate to a subject not set up as a ground of divorce in this suit. The court properly excluded the letter.

There is no error.

In this opinion the other judges concurred.