DeYoung v. DeYoung

AYRES, Judge.

Plaintiff, by this action, sought a judgment of separation “a mensa et thoro” from her husband, custody of her two minor children, and an award for support of herself and the children. From a judgment rejecting her demands, plaintiff appealed.

The issue presented is purely factual in character. Appellant asserts that the record supports a conclusion that defendant, on numerous occasions, Had not only been guilty of using violent and abusive language but had actually committed physical assault upon her. Therefore, it is contended that the court erred in holding that: first, plaintiff had not established her case by a clear preponderance of evidence; second, unsupported accusations of infidelity did not constitute cruelty sufficient to justify a separation; and, third, defendant’s act of striking plaintiff did not constitute sufficient cruelty to warrant a judgment in her favor.

From a brief statement of the trial court, dictated into the record, it appears plaintiff’s demands were rejected because they had not been established by a clear preponderance of the evidence. From our review of the evidence, and in consideration of its irreconcilable character, there does not appear to be any basis for a conclusion of error on the part of the trial court. While there was evidence that a minor physical assault had occurred a few years prior to their separation, the evidence shows that defendant apologized, expressed his regret, and promised not to repeat his wrongful acts. The parties continued to live together thereafter until the separation upon which this action is based.

No good purpose would be served by reviewing the testimony in detail. It suffices, we think, to state that the conclusion reached by the trial court, that plaintiff had not established her case by a clear preponderance of the evidence, is correct.

Accordingly, for these reasons, the judgment appealed is affirmed at plaintiff-appellant’s costs.

Affirmed.