Judges: Moulton, Sherburne, Buttles, Sturtevant, Jeffords
Filed Date: 1/2/1940
Status: Precedential
Modified Date: 10/19/2024
This is an action for divorce which is based upon the sole ground of alleged intolerable severity. Following the trial findings of fact were filed by the court and thereafter judgment was rendered dismissing the libel and also awarding to the libellee her reasonable costs in excess of fifty dollars suit money theretofore paid by the libellant to the libellee. Libellant comes to this court relying only on exceptions to the judgment order. The libellee also filed a bill of exceptions and comes here relying on certain exceptions to the findings of fact.
The findings disclose that the parties lived together as husband and wife from the time of their marriage in 1927 until July 12, 1938, and during that entire period had regular sexual relations, the last intercourse taking place at about four o'clock in the morning of the last named date. On July 11, 1938, the libellant had informed the libellee that she would have to choose him instead of her family, and that if she did not do so within twenty-four hours either the libellant or the libellee would have to leave the home. In the evening of July 12th, no arrangement of this matter having been made, the libellant left the house which he and his wife had theretofore occupied and he did not thereafter live with her.
The conduct of the libellee which the court finds constituted intolerable severity was comprised of a large number of acts between 1928 and July, 1938. It is found that the libellee engaged in and persisted in a course of conduct which annoyed and bothered the libellant and caused him mental, emotional and nervous distress and grief. There was no finding of any act by *Page 71 the libellee in the nature of intolerable severity subsequent to the last act of marital intercourse above referred to.
The questions raised by the libellant's exceptions to the judgment order dismissing the libel may be answered by determining whether the libellant's action is barred by condonation of the acts of the libellee which it is found constituted intolerable severity. The court found that prior to the fall of 1936 the acts of intolerable severity on the part of the libellee were condoned by the libellant through the continuance of marital cohabitation. But condonation is always conditional and has for its very basis and consideration the promise, express or implied, that the forgiving party shall, in the future, be, in all respects, treated kindly and restored to conjugal rights. Adams v. Adams,
From the fall of 1936 to July 12, 1938, the court found no forgiveness or condonation by the libellant of libellee's conduct, except such as is to be inferred or implied as a matter of law from a desire to keep the home together for the benefit of the family and especially the children, and except such as is to be inferred or implied as a matter of law from the regular sexual relations above referred to, terminating on the morning of July 12, 1938.
It is not made to appear that the libellant, subsequent to early July, 1938, was actuated by any desire to keep the home together for the benefit of the family and children. In fact the absence of such a desire might be inferred from the ultimatum given by the libellant to the libellee on July 11th. However that may be, we think that condonation cannot be inferred or implied as a matter of law merely from a desire to keep the home together for the benefit of the family and especially the children.Greenwell v. Greenwell, (R.I.)
The findings do not definitely indicate that more than *Page 72
one act of marital intimacy took place between the parties between "early in July" and the morning of July 12th. We therefore confine our inquiry to the question whether from the act of intercourse on the morning of July 12 condonation is to be inferred or implied as a matter of law. The finding with respect to this act is that it was voluntary on the part of both libellant and libellee. The initiative came from the libellee and the matter was actively pursued by her until the libellant, though mentally reluctant, complied. Fraud in procuring the claimed condonation cannot be inferred from this finding, and the court does not elsewhere find that there was such fraud. In the absence of such a finding it will be presumed that there was no fraud in such procurement. Marshall v. Marshall,
It is well established in Vermont that intolerable severity, like other causes for divorce, is condoned by and the necessary promise of kindly treatment is inferred from uninterrupted or subsequent voluntary marital cohabitation. Adams v. Adams,
The libellant contends that there could be no condonation as a matter of law in this case because the intolerable severity which was here found consisted of a large number of acts which formed a persistent course of conduct. But it is significant that the final act of intimacy occurred later than any acts constituting intolerable severity, and after the libellant had formed and announced the intention of separating from the libellee on the following day if she did not make the choice he had requested. For this reason many of the cases cited by the libellant from other jurisdictions are not in point. The libellant then had full knowledge of all the acts of the libellee upon which he relies in this action. He had endured those acts up to the point where it is found that they constituted intolerable severity under our law and it does not appear that he could hope to strengthen the proof which would be required by further cohabitation with the libellee. We perceive no reason which required the libellant to *Page 73 indulge in acts of marital intimacy during the twenty-four hours in which the libellee was required to make the choice demanded.
The case of Ryder v. Ryder,
Was the cause for divorce which here existed condoned, as a matter of law, by the final act of marital intimacy? On this question there is great divergence of authority. It is said in 19 C.J. 87, sec. 201: "A single voluntary act of sexual intercourse by the innocent spouse after discovery of the offense is ordinarily sufficient to constitute condonation, especially as against the husband." In many of the cases cited to this proposition the offense which was so condoned was adultery, but this rule was applied in Phinizy v. Phinizy,
In Shirey v. Shirey,
In Drew v. Drew,
Beebe v. Beebe,
Sexual intercourse, under the circumstances here disclosed, constitutes condonation. Adams v. Adams, supra. We hold that under these circumstances one such act of intercourse is sufficient to bring about that result. We are impelled to that conclusion in part by considerations of public policy. The law undoubtedly favors the marriage relation and its continuance.Rogers v. Rogers,
No exceptions were briefed by the libellant to the findings of fact upon which our conclusion is based and they therefore stand, as to him, as undisputed facts warranting that conclusion as a matter of law. Adams v. Adams,
The libellant's exception to that portion of the judgment order which adjudged that the libellee recover from the libellant her reasonable costs in this action in excess of $50 suit money previously paid, said costs to be taxed and computed by the clerk, must be sustained.
It is only by force of our statutes that costs are ever *Page 75
taxed and allowed. In re Jacobs,
Judgment that the libel be and is dismissed, affirmed. Judgmentthat the libellee recover from the libellant her reasonable costsin excess of $50.00 suit money heretofore paid said libellee bythe said libellant, said costs to be taxed and computed by theclerk of the court, reversed. *Page 76