Gosser v. Gosser ( 1898 )

Opinion bt

Mb. Justice Felt,

The decree entered in the common pleas rests upon the finding by that court that the allegations of the libel were fully sustained by the proofs offered, and that the respondent failed to establish either of the two grounds of defense set up in the answer. This decree should be sustained unless the finding is shown to be clearly erroneous. The responsibility of determining the facts rests in the first instance upon the judge who hears the testimony, and a mere doubt as to the correctness of his findings is not sufficient to disturb them. The most serious doubt raised by the testimony is whether the defense of condonation was established. The libellant had knowledge of many facts now relied on as evidence of the offense charged sometime before he separated from his wife; but explanations which, while admitting gross impropriety of conduct, denied actual guilt, were made to him by his wife and accepted as satisfactory. When explanations ceased and the conclusion of innocence was no longer possible he left her, and marital relations were not resumed. Much less might have been sufficient to have convinced others. That he resisted belief and was slow to act is to his credit. Condonation may be inferred from cohabitation after knowledge. In most cases where the presumption of con-donation has been held to be conclusive the libellant has been estopped by his own act from alleging want of knowledge. Forgiveness implies a knowledge of the offense to be forgiven, and there can be no condonation without a belief in guilt and an intention to forgive it. Mere suspicion is not belief, and the proof of circumstances which might give rise to it is not sufficient to establish a conclusive presumption of condonation on the ground of cohabitation. The condonation which the act of assembly makes a bar to a divorce must be “ after he or she knew of the criminal fact.”

The decree is affirmed.