Johnson v. Johnson

Bronson, Oh. J.

This is an action for divorce upon the ground of extreme cruelty. The trial court found that defendant had not been guilty of extreme cruelty as alleged and dismissed the action. Plaintiff has appealed from the judgment and, in this court, now demands a trial de novo.

The facts, generally stated, are: The parties, after their marriage in December, 1911, resided upon a farm in Barnes county, near Heimdahl, where they resided together until June, 1922, when plaintiff left her husband, went to her mother’s house in Valley Oity, and later, in June, 1922, brought this action. They have four children ranging in ages from five to ten years. Plaintiff testifies, concerning the circumstances of their married life, to the general effect that her husband was ill-tempered, scolded and upbraided her, and upon occasion, slapped her in the face; that once he kicked her out of bed; that he accused her of infidelity, frightened her by.having guns in the house and carrying them about or asking her to shoot him, objected to her visiting her parents and ordered her to stay away, if she did visit lieu* parents. Some six years after their marriage, plaintiff went to her mother's home. Defendant went there to see her. An altercation took place between him and plaintiff’s brother. Plaintiff remained there some, eight months. Then defendant came and begged forgiveness. Plaintiff determined to try him again, but his conduct did not change. hi June, 1922, plaintiff wanted to visit her parents; defendant objected. She, nevertheless, went taking with her the two youngest children. Then she did not intend to leave him but intended to return; but defendant did not write asking her to return, nor did he advise her, after she had written to the boys stating the date of her return, that he would meet her. So this divorce action was instituted the day after the day she intended to return.

Otherwise, plaintiff testified that her husband was active, never idle, and a good provider; that they had a nice home.

Plaintiff’s mother, a brother, and a sister testified to circumstances of scolding, upbraiding and ill temper by defendant. Likewise, to some extent, a school teacher who roomed for a time at their home, and a hired man.

Defendant testified to the general effect that his wife had entirely over-emphasized his conduct towards her; that in general they were very happy until plaintiff’s relations started to intermeddle with their family affairs; that they did occasionally have their quarrels but he never mistreated her; that he did once slap her face when a letter came from her mother abusing him; that he has his faults but they are such faults as are common to human beings; that his wife is faithful, is a good housekeeper; that he has always wanted her to live with him and that she is welcome now. The two sons testified and related no circumstances of mistreatment of plaintiff by defendant.

The sole contention of the plaintiff upon this appeal is that the evidence is sufficient to both warrant and require a finding of extreme cruelty on defendant’s part.

The learned trial judge, in a memorandum statement at the conclusion of the trial, stated to the general effect that many of the incidents related occurred years ago in the married life of the parties; that the troubles, thus aired in court, appeared almost trivial; that intermeddling of plaintiff’s relatives was largely the basis of the troubles between them; that the home life of the parties was not bad when outside meddling did not occur; that there was a paramount duty imposed upon the parents, not inhibited by acts of the defendant, for themselves, for their children and for society, to maintain the home; that, under tiie circumstances, the evidence was insufficient to justify any divorce. It is sufficient to state that many of the incidents related by plaintiff concerned scolding and temper displayed by defendant. Some of these incidents, as related by plaintiff, are indeed trivial; such, for instance, as finding fault with plaintiff because she went to the Ladies’ Aid or with the manner in which she did cooking. Much of this scolding and temper arose by reason of plaintiff’s visit to her parents and relatives and on account of the actions and feelings of her parents and relatives towards defendant. The charges of infidelity are wholly uncorroborated; they did not cause the plaintiff to leave defendant; she lived with him thereafter; they had their source in one of their wordy quarrels. For instance, at one time plaintiff came home from church without her husband. He thought she had gone home with the hired man. Upon the evidence it is more or less apparent that plaintiff has a temper as well as defendant. Plaintiff’s temper apparently has not been ameliorated or softened towards her husband by any acts of her parents and relatives.

Upon the record, furthermore, it is certain that a reconciliation took place between the parties some six years after they were married and the plaintiff returned and lived with defendant for some five years more. Many of the acts of cruelty related by plaintiff in her testimony occurred during' these first six years. There can be little question that condonation took place concerning such acts. It is particularly noteworthy that when plaintiff last left the home and the defendant for the purpose of visiting her relatives she had no intention then of leaving’ the defendant on the grounds of cruelty or upon any other ground. At that time she intended to return and the only reason why she did not return, pursuant to her own testimony, was because defendant did not write to her and did not advise her that he would meet her; although, in fact, he did go to town for the purpose of meeting her after she had advised the children that she would return upon a certain day. The fact further appears in the record that she formed this intention to start this divorce action after she visited her relatives.

The trial court, with the parties before them, possessed a superior opportunity to observe the plaintiffs and weigh all conflicting testimony. McBride v. McBride, 43 N. D. 328, 174 N. W. 870; Johnson v. Johnson, 46 N. D. 606, 180 N. W. 794. Upon this record we are not disposed to overturn the findings of the trial court. It does appear that the marital life of these parties may continue well composed and adjusted if each will seek, in good faith, to perform their marital vows and try to provide for the children a home worthy of the name. In this respect parents and relatives of plaintiff may render, if they will, real and worthy assistance. Sad enough it is, in the marital life of those parties, that the great love once evidenced openly, still clinging in the shadowed depths, should thus prove the cause of woe. The judgment is affirmed.

Nuessle, Bisdzell, and Christianson, JJ., concur.