2341 | Wyo. | Jan 28, 1947
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Without going into details, the recital of which would not subserve any good purpose, the record discloses the following: The testimony of the witness Marjorie Bell indicates that the defendant has at times an irascible temper, which was exemplified in open court at the time of the trial of the case in the court below. Part of this, however, may be explained by the fact that the defendant is hard of hearing; nor is her eyesight good. Plaintiff testified that the defendant made life a burden for him, particularly for ten years prior to May 28, 1936, by continually "brow beating" him; that he was refused the use of the kitchen of their home or of the living room or of the telephone; that at one time defendant threw a tea kettle full of boiling water at him; at another time a knife, and at still another time an iron handle. The immediate cause of his leaving the home of the parties on May 28, 1936, was, as he testified, the fact that when he came home from his work for the railroad company defendant kept "brow beating" him for two hours for being late, the cause of which he explained, and that he had to get some sleep before going back to work. Mrs. Dawson denied all indignities and all acts of cruelty. She stated in part: "I never fussed at that man in my life; he never fussed with me, and we never had any quarrels and we never had any racket; *525 all of the years we were living together neither one of us fussed with the other; I had a wonderful husband; he was perfect; Mr. Dawson always treated me with the very, very highest respect all of his life * * * if I have done anything I don't know anything about it. We never quarreled and never had any trouble, never."
The evidence in the record shows that both parties to this action are now about sixty-eight years of age. They were married on January 4, 1895. They had two children, both of whom are of age and have homes of their own. Plaintiff left home on May 28, 1936, and has never returned. On January 21, 1937, in an action for separate maintenance, the defendant was awarded alimony against the plaintiff in the sum of eighty dollars ($80.00) per month. He earned at that time, as he testified, about two hundred forty dollars ($240.00) per month. He paid the alimony until some time in 1944, when he retired as a workman for the railroad company at a pension of one hundred nine dollars ($109.00) per month. He testified that he has no other property; that he has been sick for a number of years, and is now sick, and has been advised to seek another climate. The defendant owns her home, which she bought for the sum of forty-five hundred dollars ($4500.00). She testified that she had no other property aside from a few dollars in money; that at one time she received a little money from her daughter.
We may admit for the purpose of this case that the evidence was not sufficient to grant a divorce on account of indignities offered to plaintiff, and we shall confine this opinion to a consideration of the second ground for divorce, that of separation, which is based on Chapter 2, Session Laws of 1941, reading as follows:
"A divorce from the bonds of matrimony may be obtained in addition to the causes now provided by Chapter 35, Revised Statutes of Wyoming, 1931, and subject *526 to the same procedure and requirements, for the following cause:
"When the husband and wife have lived apart for two consecutive years without cohabitation but not upon such ground if such separation has been induced or justified by cause chargeable in whole or material part to the party seeking divorce upon such grounds, in the action."
We considered this statute in Jegendorf vs. Jegendorf, (Wyo.)
The various statutes permitting divorce on the ground of separation are not uniform and few of them read like ours. However, the statutes of New Hampshire and Vermont, as that of Wyoming, seem to require freedom from fault on the plaintiff's part. Keezer, supra, Sec. 455. We have found no decisions from these states on the point in question. The Supreme Court of Washington, in Pierce vs. Pierce,
"The law was changed, in that it created what we deem to be nothing more nor less than a rule of prima facie proof, to wit, that an applicant for divorce, pleading and showing that there has been a separation and living apart for a period of more than 5 years, shall prima facie be presumed to be the injured party and be entitled to a decree of divorce. In other words, when the applicant has proceeded thus far, he or she has made out a case which in the absence of other proof entitles him or her to a divorce as a matter of right. But that to our minds does not argue that such proof becomes conclusive upon the question of who is `the injured party' in the sense of precluding the opposing party from showing by proper evidence who is in fact `the injured party'." *528
In other words, the court held that the fault of the plaintiff is in the nature of an exception which must be proven by the defendant. See 31 C.J.S. 712. In view of the fact that our statute meant to liberalize the causes of divorce, we do not think we are justified in giving our statute a stricter interpretation than did the supreme court of Washington. The trial court did not determine the issues in that light, and we are left free to draw our own conclusions. We feel that in this particular case we can properly do so, although ordinarily, of course, the determination of questions of fact should be, and will be left, in the first instance at least, to the court below. We do not think that we are warranted in holding that the defendant has sustained the burden of proof which rests upon her as above mentioned. She testified, as already stated, that the plaintiff had been a perfect husband and had always treated her with the utmost respect. We think we are not warranted in inferring from that testimony that a husband of that character was the cause of the separation. Perfect husbands do not, ordinarily at least, abandon their wives without adequate cause. We might mention incidentally that the supreme court of Washington in the late case of Evans vs. Evans,
While the holding of the trial court is not altogether clear, it seemingly denied the divorce because "the grounds for divorce, as alleged in the petition of the plaintiff, were not corroborated as by law required." The court perhaps had in mind the provision of Sec. 3-5932, Wyo. Comp. Statutes of 1945 (Sec. 35-131, Rev. Statutes of 1931) reading as follows: "No decree of divorce, and of the nullity of a marriage, shall be made solely on the declarations, confessions or admissions of the parties, but the court shall in all cases require other evidence in its nature corroborative of such declarations, *529
confessions or admissions." This statute, as may be noted, does not, by its terms, require corroboration of testimony. The declarations there referred to are confessions as contra-distinguished from testimony as a witness. Rosecrance vs. Rosecrance,
We are unable to see how the defendant or society will in any way be benefited by denying the plaintiff a divorce. There seems to be no possible hope of any reconciliation. The parties have now been separated for over ten years, eight of which were apparently with the acquiescence of the defendant. If the aim of the statute is, as has been held (Buford vs. Buford, 156 Fed. 2nd 567), to legally end a marriage which no longer exists in fact, then this, we think, is an appropriate case to carry that aim into effect. A divorce, accordingly, should have been decreed by the trial court.
The defendant asked for counsel fees in the court below. The trial court did not grant her any. In view of the fact that plaintiff testified that he is sick and has nothing except a pension of one hundred nine dollars ($109.00) per month, barely adequate to support him, we shall follow the trial court in this respect, and deny counsel fee asked in this court. It may be that the trial court, in view of the denial of a divorce, did not adequately consider the question of alimony. It may, accordingly, upon application, now or hereafter, reconsider the question of alimony and may make such provision as may be just, particularly if it should appear that plaintiff's financial condition is better than shown by the testimony heretofore adduced.
The judgment of the trial court is, accordingly, reversed, with directions to enter a decree of divorce and for other proceedings, if any, as hereinabove mentioned.
RINER, C.J., and KIMBALL, J., concur.
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