Carr v. Carr

The exceptions really present the one question whether the dismissal of the petition on the ground that the petitioner had not made out a case for divorce was error. In disposing of the motion in the first instance, the court said it had considered the matter carefully and felt that on the evidence it should be granted; that the evidence showed that on one occasion the petitionee pushed the petitioner and she would have fallen had it not been for a chair, and at that time he threatened her and shook his fist at her; that on her testimony this was the only time he threatened her or shook his fist at her or ever offered any physical violence; that there was no evidence that that act in itself caused her bodily harm, and there was no evidence that ever thereafter he did such an act; that by the testimony he alleged acts of cruelty consisted of jawing and threatening to leave and bad language which she testified caused her to be sleepless some nights and also caused her headaches; but said the court, the fact remains that during all that time she continued living with him and even when he left she did not want him to go, and advised him to stay, but he persisted in leaving; the court further saying that the evidence was not sufficient to bring the case within the rule laid down inMathewson v. Mathewson, 81 Vt. 173, 69 A. 646, 18 L.R.A. (N.S.) 300, and Whitehead v. Whitehead, 84 Vt. 321, 79 A. 516.

Thus it is seen that in deciding the present case the trial court undertook to follow the doctrine of the two cases mentioned. The holdings in the former case, contained in different parts of the opinion, are brought together and restated in the latter case as follows: "It is there (Mathewson Case) held that intolerable severity may be established in divorce proceedings by proof of any line of misconduct persisted in by the offending party to such an extent as to cause or threaten injury to the life, limb or health of the other; and that it is not necessary that such injury, actual or threatened, should be the direct result of such misconduct, but that it is sufficient if it is produced by grief, worry or mental distress occasioned thereby. It is also there held that when the facts and circumstances are so decisive of actual or apprehended bodily harm resulting from mental suffering that there can be no difference of opinion about it, the court may take judicial notice thereof; otherwise, such essential fact must be found in order to warrant a decree of divorce."

As was said in Taft v. Taft, 80 Vt. 256, 67 A. 703, 130 A.S.R. 984, 12 Ann. Cas. 959, "It cannot be assumed that all the evidence was not fairly considered and weighed by the trial court." On the contrary, this Court will presume that all the evidence bearing on the question of intolerable severity was so considered and weighted, it not otherwise appearing. McClary v.Hubbard, 97 Vt. 222, 122 A. 469.

We apply the same presumption to what the trial court said in paragraph 5 of its findings; that they were unable to find that the treatment of the petitioner by the petitionee during the time they lived together caused her any physical injury, or that it was of such a character as to create a danger of such physical injury.

There is a further reason why exceptions 1, 4, 7, and 9, to the declaration of the court, in said paragraph 5, are without force. The evidence showed that soon after the commencement of the divorce proceedings by Mrs. Carr, her husband, Mr. Carr, as plaintiff, brought a suit in equity against his wife and Mr. and Mrs. Thurber, which suit was pending at the time of the trial of the divorce case. The record before us does not show the basis of the equity action, nor the relief thereby sought by Mr. Carr against the defendants therein. But the fact that at the time the latter testified in the trial for divorce such an equity case was pending against them, might well be considered by the trial court as likely to color their testimony then and there given. Although their testimony was not directly contradicted, the court was to judge its weight, and in so doing was not bound to believe it beyond what, in the court's judgment, it was worthy of belief.Miller v. Miller, 89 Vt. 547, 95 A. 928; Watts v. Mulliken'sEstate, 95 Vt. 335, 115 A. 150.

As to exceptions 2, 3, 5, 6, and 8, to the findings, the petitioner's brief contains merely a substantial repetition of what was said in taking them. According to our holdings many times made, the last of which was in State v. Wood (99 Vt. 490,134 A. 697), recently decided, such briefing is inadequate and is a waiver of the exceptions to which it relates.

As to the alleged failure to support, the court found that at the time the petitionee left the petitioner, the matter of her support was talked over by the parties and, as a result, on April 12, 1924, a lease was executed from the petitioner and the petitionee to J.E. Thurber, the husband of the petitioner's daughter, of the petitionee's farm in the town of Barre for the term of five years; that as consideration for this lease, the lessee agreed that he would furnish the petitioner suitable support so far as food, heat, light, and shelter were concerned, residing on the place; but that this should not include expense for clothes, sickness or medicine; that ever since the execution of this lease, the petitioner has lived on said farm with the lessee, and has received the support provided for by the lease; that during that time she has not received anything from the petitionee for clothes, but has never asked him for anything, and so far as appeared in evidence, since the execution of that lease she has not been sick. These findings do not show that the petitionee "grossly or wantonly and cruelly refuses or neglects" to provide suitable maintenance for the petitioner, and so do not constitute a cause for divorce under the provisions of G.L. 3560, subd. V.Lillie v. Lillie, 65 Vt. 109, 26 A. 525; Caswell v. Caswell,66 Vt. 242, 28 A. 988.

There was no error in dismissing the petition as to both alleged grounds for divorce.

Judgment affirmed.