Maurer v. Maurer , 150 Or. 130 ( 1935 )

This is a suit for divorce. Plaintiff charges her husband with cruel and inhuman treatment and he, in a cross complaint, likewise alleges that she had been guilty of the same kind of treatment towards him. In the complaint it is alleged in substance that defendant shortly after marriage began a practice of nagging and browbeating plaintiff; that he frequently cursed and abused her; that "upon several occasions he committed brutal assaults upon her" — at one time striking her with such force that he broke her eyeglass and caused her eye to be blackened; that "he scratched her face with his fingernails"; that he demanded of her that she go with him into the woods and help him saw wood with a crosscut saw although at such time she was keeping boarders and doing the weekly washing and house-cleaning for two other families; and that he would go for weeks without speaking to the plaintiff or to the children. It was further averred in the complaint that the defendant "apparently had contracted, and was suffering from, a loathsome venereal disease, since which time the plaintiff has declined to live or cohabit with him as his wife".

The defendant in his cross complaint asks for a divorce on two grounds, (1) that plaintiff falsely and maliciously charged him in her complaint with having been afflicted with a loathsome venereal disease, and (2) that plaintiff falsely and maliciously caused the arrest of the defendant on a charge of insanity, thereby resulting in his confinement in the county jail, when at such time she knew that the defendant was not insane.

The trial court, after hearing on these issues of cruel and inhuman treatment, entered a decree of divorce in favor of the plaintiff in accordance with the prayer of the complaint, except that an allowance of $50 instead of $75 per month was made for the support and maintenance of the plaintiff and her minor son 19 years of age. From this decree the defendant appeals.

As is usual in divorce cases, the charges of cruelty as set forth in the complaint are far stronger than the evidence to support them. Plaintiff, according to her own testimony, never went into the woods and worked with a crosscut saw. She and the children occasionally went to the woods where defendant was working, for a Sunday picnic dinner. During his vacation the defendant cut 10 or 15 cords of wood on his brother's place, for winter use. There is no testimony that defendant ever cursed or brutally assaulted his wife. It is true that he once held her wrists during a heated argument over some trivial matter but never did he strike her or the children. The breaking of the eyeglass and the blackening of her eye were wholly unintentional, as the plaintiff admitted to Reverend Rimbach who testified in her behalf. It occurred while the plaintiff and the defendant, together with friends, were returning home from a party at night in an automobile. The plaintiff and the defendant both admit drinking to some extent. There is no evidence that defendant ever "scratched his wife's face with his fingernails". We conclude that the charges of cruelty against him were greatly exaggerated.

It is not the purpose of the writer, however, to justify the conduct of the defendant. On many occasions he was domineering and overbearing. His sudden outbursts of temper no doubt caused his wife and children to fear him. Such would drive happiness out of any home. Each was suspicious of the other and seemed always ready to engage in a family quarrel. When defendant's violent temper was not aroused, he seemed to be kind and considerate to his family. He carried a $5,000 insurance policy wherein his wife was named as beneficiary. He was a "good provider" although extremely cautious about incurring indebtedness. Eliminating his ungovernable temper, the defendant was not, as his son admitted, a "bad sort" of man.

There was no justification whatever for accusing the defendant of having a venereal disease. The trial court specifically found that such charge was not true. Neither was there any reason for his arrest on the charge of insanity, causing him to be put in jail for a few hours to await a hearing which resulted in his release. Such conduct on the part of the wife — especially at a time when her husband was ill — can not be condoned.

Further review of the evidence would serve no good purpose. We conclude that both parties are at fault and that neither is in court with clean hands. The trial judge, near the conclusion of the taking of the evidence, thus expressed himself about the case: "It is one of those cases where possibly a court might be able to give a decree of divorce to one or the other, but it is also one of those cases where it may not be done; it might be possible and it might not be right. So often no good purpose is served by compelling people to live together in the nominal bonds of matrimony where, as with these people, apparently there has been no marital relationship between them for many years, but, going over this testimony, I say there is not any particular real, honest-to-goodness criticism that one could make of the other which comes, generally speaking, within the definition of cruel and inhuman treatment, taking everything together and drawing an inference, from which a court will be able to say one or the other should have a decree; * * *." It may be, as the trial judge no doubt believed, that the interests of society would be best subserved by granting a divorce in this case, but it is submitted that divorces can be obtained only by the innocent party on some statutory ground. It should not be decreed on the ground of expediency, merely for the accommodation of the parties: Thomsen v. Thomsen, 128 Or. 622 (275 P. 673);Hengen v. Hengen, 85 Or. 155 (166 P. 525).

The decree is reversed. Neither party will recover costs or disbursements in this or in the lower court.

ROSSMAN and KELLY, JJ., concur.