12 Or. 437 | Or. | 1885
This appeal is from a decree in a suit brought by Duenna Boon against her husband, H. D. Boon# for a-divorce. The Circuit Court granted Mrs. Boon the divorce, but did not decree her any portion of her husband’s property, nor make any provision for the custody and support of the children of the parties, nor grant alimony to the wife. Both
Section 495 of the Civil Code provides that “whenever, a marriage shall be declared void or dissolved, the party at whose prayer such decree shall be made shall in all cases be entitled to the undivided one third part, in his or her individual right, in fee, of the whole of the real estate owned by the other at the time of such decree, in addition to the further decree for maintenance provided for in section 497; and it shall be the duty of the court, in all such cases, to enter a decree in accordance with this provision.” Said section 497 empowers the court to further decree, for the care and custody of the minor children, and for the recovery from the party in fault, such an amount of money in gross or installments as may be just and proper for such party to contribute to the maintenance of the other. This section is only permissive in form, but the former one is imperative. I think, however, that the decree in such a case would be imperfect unless it provided for the care and custody of the minor children, if there were any. The decree therefore should be modified if allowed to stand. The defendant claims that it should not stand, but that it should be reversed upon the grounds that the allegations of the complaint and proofs submitted do not warrant it.
By the laws of this State, a dissolution of the marriage contract may be declared at the suit of the injured party for certain causes, among which is, for cruel and inhuman treatment, or personal indignities rendering life burdensome. The suit in this case was instituted upon that ground, and it is claimed upon the part of the wife that she has been subjected to that character of treatment by her husband.
It appears that the parties married in 1871; that they had five children, the oldest aged twelve years, and the youngest aged three years, at the time that the suit was commenced. The husband has been in business, keeping a book store, and is still
The proofs in the case were mainly directed to the question of the husband’s jealousy, and his conduct connected therewith. A number of charges of misconduct on his part are made in the evidence, but which he has explained away or denied. The charges in the complaint are of such a character that if the proof showed that the husband had been imprudent, unreasonable, and persistent, it would not necessarily establish “cruel and inhuman treatment or personal indignities rendering life burdensome.”
Jealousy on the part of a husband may arise from a strong attachment for his wife, from high sense of honor for her reputation, and a desire that she shall be and appear perfect. Again, it may be incited by imprudent conduct upon her part. She may so demean herself as to attract attention and cause comment, and nothing is more calculated to exasperate a ‘sensitive man than that. Whenever, therefore, his conduct has resulted from
I assume in the outset that the plaintiff has been to the defendant a virtuous wife; but.it cannot be claimed, in the light of the evidence, that she has always been prudent in her conduct, and amiable in her temper. Her riding with a certain young man upon two occasions, her visiting his place of business, and her sitting upon the porch with another young man an unseemly length of time, while staying at a certain summer resort, were acts calculated to excite comment, and did occasion remark; and reports were conveyed to her husband regarding her conduct in those particulars. The acts in themselves may have been, and no doubt were, entirely innocent, but were not prudent. These reports, coming to the husband, and several anonymous, letters that evidently some vile wretch sent him through- the postoffice and otherwise, warning him of her infidelity, seemed to have occasioned all the alleged misconduct on his part complained of. And it is no wonder if he did, under the circumstances, become excited and aggressive. What husband would not, in such a case, demand an explanation from his wife—would not with great solicitude inquire what it meant, and would not enjoin upon her a strict observance of highly proper conduct. The evidence tends to prove that he set a watch upon her movements. She certainly could not complain of that, and, as I remember the evidence, did not. The information he had received was well calculated to excite suspicion, and as long as he continued his investigation in good faith, for the purpose of ascertaining the truth or falsity of the reports, he acted properly. His own honor and the honor of his children was involved in the affair.
The counsel for the plaintiff animadverted with much stress upon the fact that he did not destroy at once the anonymous
Said counsel further claims that the defendant “believed the contents of the letters to be true; that he taunted the plaintiff in regard to matters contained in one of them.” The matter referred to is the statement in the letter that she was accustomed to meet, men at their barn, and she testifies that defendant came home in haste one morning, and said he was a going to have his barn insured. She says that, “at the time he did not say why, but she found out that he had been warned in the letters; that he was afraid they would have a cigar and set the barn on fire.” How she found this out does not appear, and I imagine that she only inferred it. The inference may have been correct, or may not. The defendant might not have had that circumstance in view at all when he made the remark, but if he had, it very probably was intended as facetious.
She testified, in answer to this question, “did your husband ever accuse you of unchastity or improper or criminal relations with other men?” that he never did; so that she could not have regarded the remark referred to in any such light. I am unable to discover in the case any sufficient proof of cruel and inhuman treatment as alleged in the complaint, nor does the plaintiff seem to claim it. When Ur. T. L. Golden asked her, after the suit was commenced, what were her grounds for expecting a divorce, her answer was, “that Mr. Boon objected to her going where she pleased, and with whom she pleased, and that she thought a woman had a perfect right to do as she pleased, and go with whom she pleased.” It may be inferred from this that she regarded the marriage relation with her husband as too much of
I have not referred to the conduct of the plaintiff as a justification of the acts of the defendant. He very probably has done wrong in many instances, but I think we have a right to consider all the circumstances surrounding the case. (Harper v. Harper, 29 Mo. 301.)
The plaintiff’s counsel says that these parties cannot live together as husband and wife should. This, of course, the court has nothing to do with. It can only determine whether the evidence establishes good grounds for a separation, and if it believes that the charges alleged in the complaint have not been sufficiently proved; it can do no less than deny the relief prayed. As I look upon the matter, the court would assume a grave responsibility in the premises if it granted the divorce. The parties to the suit are not the only ones interested in the affair. The welfare of five minor children is to be taken into consideration. What is to be done with them .in case of a separation? If the care and custody of them was given to the wife, provision would necessarily have to be made for their support. In that event the accumulation of the parties would have to be divided, the management of a great portion of it confided to the wife, who, in all probability, has had no experience in such matters, and the husband would be left with a remnant, disheartened and discouraged. The inevitable result would be that the property.
After a due consideration of all the facts in this case, I am convinced that the proofs do not establish the charge made by the plaintiff in her complaint, and that it ought, therefore, to be dismissed. Some provision should, however, be made in regard to the costs and expenses of the litigation, which can be considered before entering the decree.
Decree below reversed and bill dismissed.