Waid v. Waid , 117 Ind. App. 4 ( 1946 )

In this case the appellee sought and obtained a divorce from the appellant on a complaint charging cruel and inhuman treatment. The sole question 1, 2. presented challenges the sufficiency of the evidence to sustain the decision of the court. The appellee contends that a specification of error in a motion for a new trial "that the decision of the court is not sustained by sufficient evidence" is inappropriate and presents no question. Such is the law only where the decision complained of is wholly negative.Ayres v. Lucas (1945), 116 Ind. App. 431, 63 N.E.2d 204;Wadler v. Mogul Rubber Corporation (1945), 116 Ind. App. 152,61 N.E.2d 472. In the present case the appellant complains of the affirmative action of the court in decreeing a divorce on the appellee's complaint and the challenged specification of error is not only proper but necessary to present any question as to the sufficiency of the evidence to sustain the court's decision.

The problem of determining whether the evidence in a given case supports a decision that the conduct of the offending spouse constitutes "cruel and inhuman treatment" is rendered 3-5. difficult by the fact that there is no exact inclusive and exclusive definition of "cruel and inhuman treatment" that can be used as a standard yardstick. This court said inFoster v. Foster (1922), 79 Ind. App. 345, 138 N.E. 360: "The courts have not attempted to frame an exact and all-inclusive definition of ``extreme and repeated cruelty,' but generally content themselves with determining whether the facts in the particular case in question constitute such cruelty or not. 9 R.C.L. 335, and cases there cited. In the same text it is laid down as the modern rule, that whether the offending spouse has been guilty of legal cruelty is a pure question of fact, to be determined from all the circumstances of the case." It may be said further that in the solution of the question courts will not confine themselves to the consideration of any one particular act or set of acts, because they recognize that there are many matters which by themselves are not sufficient to constitute legal cruelty, but which may do so when taken together. 17 Am. Jur., Divorce and Separation, § 49, p. 174. It also is settled beyond controversy that cruel and inhuman treatment which will justify the granting of a divorce includes mental as well as physical cruelty. Ringenberg v.Ringenberg (1942), 110 Ind. App. 290, 38 N.E.2d 870.Mendenhall v. Mendenhall (1946), 116 Ind. App. 545, 64 N.E.2d 806.

With these principles of law in mind we have examined the transcript in this case with care and find evidence of frequent and vehement use of obscene and abusive language by the 6-8. appellant toward the appellee in the presence of their minor child and others. She repeatedly charged the appellee with improper relations with his female customers and accused innocent women, in the appellee's presence, of carrying on affairs with him. She frequently told him that he meant nothing to her beyond a source of income. On several occasions her conduct about the house became so violent that the neighbors complained to the extent that the appellee was compelled to move his family elsewhere. She seems to have had little conception of the standard of living to which she was limited by the appellee's income and when he remonstrated against her extravagance she had periods of emotional instability which sometimes lasted two or three months, during which she cursed and nagged the appellee constantly. The over-all character of her conduct for many years was such that finally life with her became unbearable and separation resulted on April 29, 1944.

On the other hand there is evidence in the record on which the court might have found that the appellant's conduct can be attributed to mental illness of an emotional or neurotic type. On one occasion the appellee placed her in a Christian Science Home in St. Louis where she remained about four months. Six or seven years ago she submitted to a voluntary commitment to a hospital in Evansville and remained there about six months under the treatment of a psychiatrist. On May 19, 1944, 20 days after this action was commenced, she was adjudged insane by the Vigo Superior Court and committed to the Logansport State Hospital, where she remained until May 22, 1945, when she was found to be of sound mind and released. While she was so confined this action remained pending on the docket of said court, but after her discharge it was brought to trial.

On this state of the record we cannot interfere with the judgment of the court below. We think there is evidence to sustain the court in its finding that the appellant's conduct was cruel and inhuman. Whether such conduct was that of a legally responsible person or excusable by reason of insanity, thus furnishing no grounds for divorce, was also a question of fact for the trial court to determine. We cannot say, without weighing the evidence and substituting our judgment for that of the trial court, that these issues were decided erroneously. That, of course, we are not permitted to do.

Judgment affirmed.

Hamilton, C.J., not participating.

NOTE. — Reported in 66 N.E.2d 907.