Johnson v. Johnson ( 1921 )

The contention of the libelant is that the court was bound to find from the report of the master that she was entitled to divorce on the ground of extreme cruelty. But that finding or ruling does not necessarily follow. The only question presented by the exception is whether it conclusively appears that the court erred in dismissing the libel. While it may be assumed that the husband assaulted the wife in the manner described in the report, the court would be justified in finding that it did not amount to extreme cruelty, and as a matter of law that it did not constitute a ground for divorce. The slap upon the face was not serious. It occurred during an altercation between the parties, was attended by no threats of violence reasonably to be apprehended and was the only instance of physical violence inflicted by him upon her during their married life of some nine years. Clearly no error was committed in dismissing the libel. The fact that the parties frequently disagreed and engaged in heated discussions upon numerous occasions taken in connection with the slight slap in her face does not conclusively prove extreme cruelty. Poor v. Poor, 8 N.H. 307; Jones v. Jones, 62 N.H. 463; Hart v. Hart, 68 N.H. 478; Robinson v. Robinson, 66 N.H. 600.

The evidence reported on recommittal together with the facts covered by the original report would seem to be sufficient to justify the court in finding the fact of condonation on the part of the libelee. 2 Bish. Mar. Div. Sep. s. 336. The court has not indicated upon what ground the divorce was denied, but it is not essential that it should directly appear since the ruling is sustainable on either of the two grounds above considered. It cannot be set aside if it is supported by the evidence upon any legitimate theory of the case.

Exceptions overruled.

All concurred.