Marshall v. Marshall

65 Vt. 238 | Vt. | 1892

ROSS, Ch. J.

The petitioner, having a good cause for a divorce, and having preferred her petition, was induced to discontinue it, and take the petitionee and • live with him again as her husband, upon certain promises made by him,, most of which he has failed to keep. The contention is whether the condonation was procured by fraud; or whether the violations of the promises were of such a character that the condonation is waived, and the petitioner is entitled to rely upon the original cause. The county court has not found that the condonation was procured by fraud. . Fraud is a fact to be found by the trial court. The violated promises might have been honestly made. This court, to uphold the judgment of the county court, is to presume they were' rather than the contrary, so long as the fact of fraud remains unfound. To waive a condonation the petitioner must establish some act or series of acts, or conduct, on the part of the petitionee tending to establish some one of the causes for a divorce, so pronounced as to raise a reasonable probability that if the marital relation is continued, a new cause for divorce will be given. This, we think, is the fair result of the authorities on this subject. It is not necessary that a new cause shall be established. For if so, the revival of the condoned cause would be of no importance. Langdon v. Langdon, 25 Vt. 678. As said in 2 Bishop on Mar. & Div. (6 Ed.) § 58, “The condonation, having presumptively proceeded on evidence of a change of temper, acts short of original cruelty may show that no change did take place; and, while not alone sufficient evidence of danger to the injured party, may make the danger apparent when connected with what went before.”. Most of the violated prom-isns related to giving the petitioner power over the petitionee’s pocketbook. While their violation is found, it is not found that the petitionee failed to support the petitioner in a reasonable manner. The original cruelty found arose from his management of the coal stove which warmed her sleeping room. Before the condonation he had not allowed her to touch it. He promised that thereafter she should manage it. It is not found that he has violated this promise otherwise than that he did not furnish her coal to burn in the stove, and that she bought some with her own money. It is not found that he refused to furnish her other fuel to burn in the stove. While his conduct, in not keeping the promises by which he brought about the condonation, is not to be approved, in that it does not indicate much sincere change of temper, yet none of the acts subsequent to the condonation complained of was of such a pronounced character that this court can say, against the judgment of the county court —which has much better opportunity to judge of the weight to be given the new act complained of, found established, than has this court — that a new cause for a divorce would probably be given by the petitionee if the,marital relation is continued. Yet this court must be able to say that the new acts complained of are of such a character, in order to find error in the judgment of that court; or, from the facts found this court must infer a fact not found, and that, too, to raise error in the judgment of the trial court. The latter is not the province of this court.

Judgment affirmed.