DocketNumber: No. 6529.
Citation Numbers: 87 P.2d 461, 59 Idaho 716
Judges: GIVENS, J.
Filed Date: 12/15/1938
Status: Precedential
Modified Date: 1/12/2023
Appellant, cattleman and rancher, and respondent, school-teacher and housewife, husband and wife since April 24, 1921, with four minor daughters, ages 13, 11, 9 and 3 years respectively, became beset with marital difficulties, with the result that appellant sued for divorce on the ground of cruelty, which respondent resisted and asked for separate maintenance, resulting in a decree denying the divorce, granting separate maintenance, and custody of the children to respondent and awarding her all the property, *Page 719 real and personal, both community and separate, from which this appeal was taken.
Appellant makes several assignments of error which may be grouped as follows: That the court erred in making certain findings and in concluding that respondent was entitled to separate maintenance and in denying the divorce; that the court erred in awarding all the property to respondent; and that objections to certain questions propounded by appellant were erroneously sustained.
In order to consider the last group it is necessary to briefly review the alleged grounds of divorce, recrimination and claim for separate maintenance and evidence relative thereto.
Appellant claims respondent had been guilty of cruelty in that she had called him vile names, slapped him, swore at him, and untruthfully told neighbors that he was unduly intimate with women. Respondent denied the vile language, physical violence, admitted telling of his relations with one woman, and asserted appellant had inflicted cruelty on her in that he had been unduly intimate with women and at times had inflicted physical violence upon her.
Though not in the pleadings, evidence was introduced by both sides, pro and con, to the effect that respondent had truthfully and untruthfully told that appellant had infected her with an infectious venereal disease, and among other evidence respondent testified in substance that she went to Boise for treatment and that she understood she had a venereal disease which she could have received only from appellant. On cross-examination appellant attempted to ascertain from respondent what a physician, she had consulted, had told her with regard to her condition. The objection was that it would disclose a confidential relationship and that it was hearsay. Neither ground was good (sec. 16-203, I. C. A.) and the objections should not have been sustained.
Appellant denied he had had an infectious disease or infected respondent. If respondent had not had a venereal disease but had told that appellant had infected her with such it would tend to have some effect on the question of who was guilty of cruelty (Callahan v. Callahan,
The findings are so general that it is impossible to tell whether the court considered the above or whether he considered only that appellant had been unduly intimate with a woman. In view of this state of the record it is better to remand the case to permit answers to these questions, and allow both parties to present any additional evidence in connection with this phase of the controversy they desire, the court to make specific findings thereon.
Since the case is thus to be remanded we will not further consider the sufficiency of the evidence or the award of the property, other than to say that while separate maintenance may be granted in this state (Sauvageau v. Sauvageau,
The cause is remanded with instructions to proceed in accordance herewith.
Awarding of costs to await the final disposition of the cause.
Holden, C.J., and Morgan, Ailshie, and Budge, JJ., concur. *Page 721
Porter v. Porter , 101 Ariz. 131 ( 1966 )
Fischer v. Fischer , 92 Idaho 379 ( 1968 )
Parsons v. Parsons , 72 Idaho 455 ( 1952 )
Baldwin v. Mittry , 61 Idaho 427 ( 1940 )
Holden v. Holden , 63 Idaho 70 ( 1941 )
Radermacher v. Radermacher , 61 Idaho 261 ( 1940 )
Cohn v. Cohn , 4 Wash. 2d 322 ( 1940 )