Kerrigan v. Kerrigan , 115 Mont. 136 ( 1943 )

The defendant contends that the complaint does not state facts sufficient to constitute a cause of action against her. It is clearly not sufficient to allege cruelty in general terms, but the facts relied upon must be set forth, with a specification of time and place so far as practicable. (Zartarian v.Zartarian, 47 Cal.App. 90, 190 P. 196; Pedreira v.Pedreira, 32 Cal.App. 711, 164 P. 30; Hubbell v.Hubbell, 7 Cal.App. 661, 95 P. 664.)

The complaint alleges certain "so-called" acts of cruelty extending "since the year of their marriage". There is nothing in the pleading to determine what acts, if any, were indulged in "for more than one year immediately preceding the commencement of the action". This is left to conjecture and speculation. The specific acts constituting the cruelty appearing the record, and as alleged in the complaint are insufficient. The fact that the plaintiff does not rely on desertion as a cause of action, eliminates the first ground, "That ever since the year of the marriage of plaintiff and defendant, defendant has for many months at a time, remained away from the home of the plaintiff". There is no allegation that he requested her to return to their home, or that she refused to do so, but that she was simply away from the home. This could not constitute cruelty, as the same is pleaded. That the course of conduct has destroyed the peace of mind and happiness of the plaintiff. The conduct in what year? There is nothing in the complaint to show that all or any part of the conduct alleged occurred within the year immediately preceding the commencement of the action. By Section 5763 of the Revised Codes, a lapse of time establishes certain presumptions, which makes the direct allegations that the acts complained of occurring within one year immediately preceding the commencement of the action, necessary and imperative. Otherwise under section 5762 it would be the duty of the court to deny a divorce.

The evidence is insufficient to sustain the findings of fact and the judgment. The particular acts of cruelty of which complaint is made are not in themselves determining factors, but the question is whether the acts of cruelty are such a nature and character as to destroy the peace of mind and happiness of the plaintiff. (Argenbright v. Argenbright, 110 Mont. 379, 101 P.2d 62;Putnam v. Putnam, 86 Mont. 135, 282 P. 855.)

Plaintiff's testimony must be corroborated. The rule is well settled that a divorce will not be granted on the evidence of the party alone, when his evidence is in conflict. (Duberstein v.Duberstein, 171 Ill. 133, 49 N.E. 316; Lane v. SuperiorCourt, 104 Cal.App. 340, 285 P. 860; Lawson v. Lawson (Texas) 293 S.W. 336; Blake v. Blake (Texas) 263 S.W. 1075.) Where there are material contradictions in plaintiff's testimony he is not entitled to a divorce, unless it is authorized by the portion of his testimony which is least favorable to him. (Putnam v. Putnam, supra; Wilson v. Blair, 65 Mont. 155,211 P. 289; Ellis v. Ellis, 77 Wn. 247, 137 P. 453.)

The plaintiff having failed to corroborate his testimony, and having failed to establish his case by clear and satisfactory evidence, the proof is wholly insufficient and the divorce to him should be denied. (Harp v. Harp, 204 Cal. 193, 267 P. 101;Kimbro v. Kimbro, 102 Cal.App. 661, 284 P. 935;Huntsberger v. Huntsberger, 99 Cal.App. 130, 277 P. 1092;Annen v. Annen, 7 Cal.App. 626, 250 P. 580; Schultz v.Schultz, 46 Wyo. 121, 23 P.2d 351.)

It is well settled that mere austerity of temper, petulance of manner, rudeness of language, a want of civil attention, even occasional sallies of passion, if they do not threaten bodily harm, do not constitute cruelty. (Bonham v. Bonham, 25 Wyo. 449,172 P. 333; Schultz v. Schultz, supra.)

Defendant was entitled to a new trial. The defendant met all the requirements of Section 9397 Revised Codes. The evidence was not known to her at the time of trial and it could not have been presented at that time because it was not in admissable form. She could not in the exercise of due diligence presented it. Therefore she comes within the exception mentioned in the statute. The evidence was not cumulative. It was new evidence, but it took time after the trial to complete the preparation thereof to place it in the form of admissable evidence. The position of the defendant due to illness, lack of time for the preparation and presentment of the evidence in admissable form, all of which was done after the trial, fully meets the rules announced by this court in the cases of Smith v. Shook,30 Mont. 30, 75 P. 513; Roberts v. Oechsli, 54 Mont. 589,172 P. 1037; Sutton v. Masterson, 86 Mont. 530, 284 P. 264. It is urged by appellant that it is not sufficient to allege cruelty in general terms. A reading of the complaint will disclose that the acts of cruelty are specifically alleged, and it is further alleged that they are justly and reasonably of such a nature as to destroy and have destroyed the peace of mind and happiness of plaintiff, and entirely defeated the proper and legitimate objects of marriage, and rendered the continuance of the marriage relation perpetually unreasonable and intolerable to plaintiff. (See Putnam v. Putnam, 86 Mont. 135, 282 P. 855;Bickford v. Bickford, 94 Mont. 314, 22 P.2d 306.) Continuous nagging is sufficient to constitute extreme cruelty. (Putnam v. Putnam, 86 Mont. 135, 140, 282 P. 855;Barngrover v. Barngrover, 206 P. 461 (Cal.); 9 Cal. Jur., Sec. 29, p. 656.)

It is further contended that there is no allegation in the complaint showing that all or any part of the conduct alleged occurred "within one year immediately preceding the commencement of the action." Before the amendment of section 5738, Revised Codes, 1921, by Chapter 22, Laws of 1931, it was necessary to allege and prove that the course of conduct complained of had existed and been persisted in for a period of one year "immediately before the commencement of the action," but the statute as amended now reads — "existing and persisted in for a period of one year before the commencement of the action for divorce." (Sec. 5738, Rev. Codes 1935; Putnam v. Putnam, supra.)

Insufficiency of evidence. In Williams v. Williams,85 Mont. 446, 449, 278 P. 1009, it was said:

"Each case must be determined upon its own peculiar facts, and it is well recognized by the authorities that an inclusive and exclusive definition of legal cruelty cannot be given. The courts have not attempted so to do, but generally are content with a determination as to whether the facts in the case considered constitute cruelty." (See, also, Wolz v. Wolz,110 Mont. 458, 461, 102 P.2d 22; Bickford v. Bickford,94 Mont. 314, 22 P.2d 306; Williams v. Williams, 85 Mont. 446,278 P. 1009; Argenbright v. Argenbright, 110 Mont. 379,101 P.2d 62.)

It is further contended that in order to sustain the judgment, plaintiff's testimony must be corroborated. In support of this contention, appellant relies upon the California case of Lane v. Superior Court, 104 Cal.App. 340, 285 P. 860, an Illinois case and two Texas cases. These cases have no bearing on the case at bar, for the reason that the decisions were based upon statutes different from ours. For instance, section 130 of the Civil Code of California provides that "No divorce shall be granted upon . . . the uncorroborated statement, admission, or testimony of the parties." Our statute reads: "The direct evidence of one witness who is entitled to full credit is sufficient proof of any fact, except perjury or treason." (Sec. 10505 Rev. Codes.) To say that the witness is not entitled to full credit because his evidence is disputed by the testimony of one or more witnesses, is to nullify the statute.

One moving for a new trial on the ground of newly discovered evidence must show by affidavit that the evidence is material, that it could not, with reasonable diligence, have been discovered and produced at the trial, and that it was not known to the affiant at the time of the trial. (Sutton v.Masterson, 86 Mont. 530, 534, 284 P. 264.) And the party moving for a new trial on the ground of newly discovered evidence must show by his own affidavit that the new evidence was not known to him at the time of the trial. The affidavit of other persons on that question are not sufficient. (Smith v. Shook,30 Mont. 30, 34, 75 P. 513; Spencer v. Spencer, 31 Mont. 631,639, 79 P. 320; Roberts v. Oechsli, 54 Mont. 589, 593,172 P. 1037.) By her own affidavit appellant states "that she had presented evidence to her attorney which she proposed to offer, but that at said time said evidence was not sufficiently complete in form to make it admissible, and it was necessary for her to gather additional evidence in relation to the changes she was to make", etc. This appeal is from the judgment for the plaintiff in a divorce action tried in Silver Bow county and from an order denying a new trial to the defendant. The parties were married on August 29, 1932. On August 22, 1941, the husband filed a complaint asking for a divorce on the grounds of extreme cruelty. Defendant filed a general demurrer and after the demurrer was overruled filed her answer and a cross-complaint, seeking a divorce on the grounds of cruelty and asked for permanent alimony.

The specifications of error raise three questions: First, was the complaint sufficient as against the general demurrer; second, was there sufficient evidence to support the court's findings; and, third, did the court properly overrule the motion for a new trial?

In her argument that the complaint was not sufficient as against the general demurrer, the defendant takes the view that the specific acts alleged are not sufficient to constitute extreme cruelty within the statute, and that the complaint is not sufficient to show that the acts alleged, even though being sufficient to support a charge of extreme cruelty, occurred within one year immediately preceding the commencement of the action. Neither argument is well taken.

The complaint alleges that on many occasions the defendant[1] left the home of the plaintiff without his consent and against his wish and remained away from home for many months at a time; that during the time defendant was at the home of the plaintiff she was sullen and sulky, refusing to converse with him except to chide and find fault with him; that she continually nagged him; that she often telephoned plaintiff at his place of work for the purpose of nagging and embarrassing him; that she at no time cooked his breakfast; that she seldom prepared his supper for him, and that she refused to go out with him; that she continuously complained of being mistreated by plaintiff without cause or excuse. The acts alleged are sufficient to constitute cruelty within the statute.

The complaint is clearly sufficient as to the second position[2] taken by defendant. It alleges that the course of conduct complained of existed and persisted for a period of more than one year before the commencement of the action, and that this course of conduct has persisted ever since the year of the marriage of the parties, and later "that such course of conduct toward and treatment of plaintiff by defendant has existed and been persisted in by defendant since the year of their marriage and for more than one year before the commencement of this action, * * *." (Sec. 5738, Rev. Codes. See Putnam v. Putnam, 86 Mont. 135,282 P. 855; Wolz v. Wolz, 110 Mont. 458,102 P.2d 22.)

While the specifications of error covering the second point do[3, 4] not include one specifically directed to the question of the sufficiency of the evidence, from their general nature and the argument this is the question that apparently defendant is seeking to raise. The rule which guides this court in considering an appeal from a judgment for divorce is stated in Williams v.Williams, 85 Mont. 446, 278 P. 1009, 1010: "Whether the defending spouse has been guilty of extreme cruelty as defined by the statute is purely a question of fact to be determined from all the testimony presented. The particular acts of cruelty of which complaint is made are not in themselves determining factors, but the question is whether the acts of cruelty are of such a nature and character as to destroy the peace of mind and happiness of the injured party. * * * Where, as here, the evidence in a case tried before the court without a jury is in conflict, the court's decision is conclusive on appeal; the trial court being in a more advantageous position, in consequence of seeing and hearing the witnesses and observing their demeanor and manner of testifying, to determine their credibility than this court upon a review of the cold record. * * * And in an action for divorce, as in other equity cases, the findings of the trial court will not be disturbed on appeal, unless the evidence decidedly preponderates against them."

No useful purpose could be served by a detailed recital in this opinion of the evidence, which amply supports the findings of the trial court. Suffice it to say that evidence was introduced by the plaintiff which sufficiently proved the allegations in his complaint as to the specific acts which constituted the cruelty upon which he relies in bringing this action.

Defendant cites cases from other jurisdictions which seem to[5] lay down the rule that the plaintiff's testimony must be corroborated by other witnesses in a divorce action. In the states from which these decisions are taken there are statutory requirements to this effect. We have no such statute in Montana. If corroboration is necessary, it is amply supplied by the defendant's own testimony.

Finally, defendant urges that the trial court erred in denying[6] her motion for a new trial. The motion was based on an allegation that the defendant was not ready when she was required to proceed with the trial of the cause, and upon the ground that she had newly discovered evidence in the case. The record shows, contrary to defendant's argument, that she made no objection to proceeding with trial when the matter was called.

The rule in this state is set out in Ebaugh v. Burns,65 Mont. 15, 210 P. 892, 894, which must guide the court in determining when a motion for new trial should be granted. In that case we said: "The courts have therefore formulated rules within which they hold the particular application must be brought, or it will not avail. They are enumerated in Berry v.State, 10 Ga. 511, substantially as follows: ``(1) That the evidence must have come to the knowledge of the applicant since the trial; (2) that it was not through want of diligence that it was not discovered earlier; (3) that it is so material that it would probably produce a different result upon another trial; (4) that it is not cumulative merely — that is, does not speak as to facts in relation to which there was evidence at the trial; (5) that the application must be supported by the affidavit of the witness whose evidence is alleged to have been newly discovered, or its absence accounted for; and (6) that the evidence must not be such as will only tend to impeach the character or credit of a witness.' These rules have been uniformly followed by this court." (Citing cases.)

The trial court has a wide discretion in determining whether[7, 8] or not the affidavits sufficiently support the motion, and warrant the granting of a new trial. The substance of what is said in the affidavits in support of the motion for a new trial is not that the evidence was not available upon the first trial, but that it was not properly correlated, checked and studied so as to put it in usable form. The principal witness upon whom the defendant apparently relied to testify as to this so-called newly discovered evidence shows by his affidavit that the acts which he claimed to be able to testify to he had observed several months prior to the time of the trial of the cause. He was present in the court room at the time of the hearing and was paid witness fees. It can hardly be said under these circumstances that this is newly discovered evidence within the rule.

If we should grant here that technically the affidavits conform to the rule of the Ebaugh case above set out, they do not contain matters of such weight or such character as would indicate that the evidence adducible under the allegations contained within the affidavits would bring a different result if the case were retried, and we cannot say that the district court abused its discretion in denying the motion.

The judgment is affirmed.

MR. CHIEF JUSTICE JOHNSON and ASSOCIATE JUSTICES ANDERSON, MORRIS and ADAIR concur.