McEvoy v. McEvoy ( 1923 )

In Morehouse v. Morehouse, 70 Conn. 420,39 A. 516, we said, and in Jacobs v. Jacobs,95 Conn. 57, 110 A. 455, and Sweet v. Sweet, 97 Conn. 693,118 A. 36, we repeated and emphasized the statement, that to constitute ground for divorce, the cruelty complained of must be of such a nature as to be intolerable, and to render a continuance of the relation by the suffering victim impracticable. In Mayhew v. Mayhew,61 Conn. 233, 23 A. 966, and the Morehouse case and the Jacobs case, the fact that the cruelty was intolerable by the victim was found by the trier. In the Sweet case there was no such finding, and no finding as to its effect on the plaintiff except that it had not impaired his health; and we held that the record was fatally defective for want of any finding as to the effect physical or mental, or both, of the cruelty complained of upon the victim. In the present case there is no finding of the fact that the cruelty was intolerable to the victim, though there is a finding that the plaintiff's health was impaired by the defendant's conduct. Evidently, impairment of health, though by the defendant's conduct, is not of itself proof of the defendant's cruelty. Still less is it conclusive evidence that the defendant's cruelty is of such a nature as to be intolerable and to amount to "a practical annulling and repudiation of the marriage covenant." Morehouse v. Morehouse, supra. It is but an evidential fact to be weighed in the balance, and to be weighed by the trier, who must assume the responsibility of determining whether, in view of our settled public policy, the condition of fact contemplated by the statute actually exists in the particular case. There may, of course, be exceptionally aggravated cases where the mere statement of the evidential facts demonstrates the intolerable character of the defendant's cruelty, and the Morehouse case was of that character (70 Conn. p. 427, 39 A. 516); but the evidential facts recited in this finding are not of such a character as to compel the conclusion that a continuance of the marital relation by the plaintiff has been made impracticable by the defendant's cruelty. There is nothing found which is necessarily inconsistent with a reconciliation and a resumption of cohabitation as husband and wife; and that being so, the condition of fact contemplated by the statute has not been found to exist in this case.

In view of the plaintiff's claim that the Sweet case is authority for the proposition that any conduct of the defendant which results in impairment of the plaintiff's health is intolerable cruelty, we deem it advisable to repudiate that suggestion, and to point out that intolerable cruelty is and always was a specific ground of divorce entirely distinct from that covered by the repealed "misconduct" clause, with which it was formerly associated in the statute. As we said in theMorehouse case: "When our legislature, in 1843, adopted as grounds of divorce a vinculo, ``habitual intemperance' and ``intolerable cruelty,' it used these words with their ordinary meaning, but with special reference to what has been since 1639 our settled policy in respect to divorce; i. e., marriage is a life status and should never be dissolved, unless one of the parties is guilty of conduct which in itself is a practical annulling and repudiation of the marriage covenant."70 Conn. pp. 426, 427, 39 A. 516. The possible exhibitions of cruelty cannot be catalogued in advance. Cruelty includes any wilful act of a human being which inflicts unnecessary pain. Jacobs v. Jacobs. But there are trials causing much weariness and suffering, which parties to the marriage contract must bear; the policy of the State, as well as the sacred nature of the marriage covenant, requires patient endurance. Morehouse v. Morehouse. 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 (§ 5280) should be found to exist.

There is no error.

In this opinion the other judges concurred.