*1 Merle Johnson and Stuart L. Tiede Woods, Fuller, Falls, Smith, Shultz & PALMER, Sioux L. Plaintiff Kenneth respondent. plaintiff and Respondent, and Hoy Evans, of Davenport, R. Carleton PALMER, M. Defendant Doris Smith, Falls, & for defend- Hurwitz Sioux Appellant. and appellant. ant No. 12215. WOLLMAN, (on reassign- Chief Justice ment). Dakota. South appeal This is an from a decree of divorce July plaintiff in favor of husband that terminat- 17, 1979. Aug. Denied Rehearing year twenty-five marriage ed a between the parties. appeals, arguing Defendant wife did not plaintiff establish decree.1 granting the We reverse. parties were December married on 23, 1950. Three were born to the children marriage, all of whom are now adults. 1973, plaintiff to his admitted seeing secretary he had been his but “was all over now.” Reno, Upon plaintiff’s trip return from a Nevada, however, in Mrs. Palmer dis- receipt covered a for a diamond purchased secretary. had for his Plaintiff moved out the home in June of separated have been acknowledged since that time. Plaintiff was still rela- carrying trial that he on his tionship with the other woman. alleged complaint Plaintiff that his inflicted suffer- wife had upon He she was him. testified that suspicious away of his activities from sought she to confirm home and that had by checking on suspicions periodically these whereabouts, mileage by observing the car, by checking the contents on pockets. Plaintiff’s evidence him was his effect of his wife’s behavior on unsupported assertion that stresses marriage had caused him to suffer backach- es.2 proper- appeals Palmer plaintiffs 1972 Mrs. wife also that in
1. Defendant alimony judgment counseling settlement, suggested had support, and that ty marriage occa- spoken on two counselors our In view of the trial court. entered she and Palmer testified that upon sions. Mrs. disposition of the divorce decree spoken on counselor with based, tiff had judgment discuss is we do not occasion, apparently the summer of contention. of this merits go back but that had refused to others, many like so 2. That this counseling. for further entirely free from discord is illustrated not *2 put proof; husband on his she did The wife among includes 25-4-2 SDCL Essentially, wag- she is not sue for divorce. cruelty, which grounds for extreme divorce ing blocking action. a 25-4-4 as “the inflic- is defined SDCL bodily injury grievous grievous tion of proved up my opinion the husband other, upon one suffering parties have been grounds for divorce. The party marriage.” living apart since 1975. He separated and endured that he had established cruelty The evidence of extreme in this actions, words, suffering from the approach that ease does not even found conduct, of his wife. The wife and abuse characterized, case, in this Pochop Pochop, 89 S.D. well be could finder, nag, and crank. fault (1975), petulant a rep- a decision that well disdain, husband with treated her She liberality resent the outer limits of in sus- conduct, scorn, respect. This very and little taining finding cruelty a of extreme life, many years of married period over a of abrogating which should not be read as ring gift of a diamond to anteceded requirement there be record evidence right had the secretary. The trial court grounds for divorce. We conclude of acts constitu- to consider the entire series determining the trial court erred in and to ting cruel and inhuman treatment guilty that Mrs. Palmer had been of ex- all, together, jus- would conclude that taken plaintiff. Suspicious treme toward divorce, though tify granting a even no one been, she may hardly have but can Habeck, act Habeck v. alone would. See that, given fault her for his admissions and her discoveries.3 husband testi- of the facts that the Some judgment is reversed. fied to are: of 1. Wife criticized his manner dress. MORGAN, JJ., DUNN and concur. FOSHEIM, JJ., HENDERSON dis- discon- resented and vocalized 2. Wife hiring eighteen- sent. of his an tentment job daughter girl to do a year-old HENDERSON, (dissenting). Justice discharging in his contract- had been purposes For clarity, plaintiff-respon- of daughter re- His business. dent shall be referred to as “husband” and girl him as she young this to ferred insanely defendant-appellant shall be referred to as Wife was an needed work. suspected that his jealous woman who “wife.” girl im- young this was conduct with cruelty as 25-4-4 defines (There proper. was bodily injury or “the infliction of any- that at time he did establish other, suffering upon the thing improper). Husband had asked marriage.” It is one of party by one for their wife if she would substitute divorce in State daughter the six for worker and she as an office sued for divorce. refused. Husband South Dakota. which, according typical ing period during transcript in 1973 in this case is rather
3. The
testimony,
relationship
plaintiffs
between
cases. The husband’s extra-
contested divorce
suspect;
parties
“very good,”
is a
the wife
and now seeks a
curricular activities
jealous nag
upon
jealous rages
to live with.
divorce based
her
after her
clear,
tangible,
undisputed
by undisputed
suspicions
evidence
evi-
were confirmed
typical
apart
case is
opinion
case
from the
sets this
should not be read as a
dence. This
purchase
plaintiffs
of a diamond
judicial
statutorily repealed
the fact of
de-
revival
deny.
girl
Rather,
This he could not
friend.
we view the
fense of recrimination.
proof
of his miscon-
When confronted with
duct,
light
evidence in the
of the full context
by attempting
responds
to ascribe his
he
between the
and not
jealous conduct over the
actions to his wife’s
years.
incidents,
light
narrow
of isolated
at least
The fact remains that
did live
nearly
years.
of which dates back
a score
quarter
century,
with his wife for a
of a
includ-
Generally speaking,
husband
approxi-
Wife distrusted
and indi-
deceiving
cated that he was
her.
mately
years,
five to six
wife was
openly
During
hostile to husband.
Reserves;
4. Husband was in the
years,
these
she repeatedly told
vocally
him
highly jeal-
and was
resented
that she would
him as
ous of a
soon
certain
fe-
divorce
noncommissioned
*3
male
daughter,
who worked under him.
Diane, graduated
their
officer
caustically
Wife
referred to this wom-
.high
school.
“Wacky-Dacky.” (Nothing
an as his
many
13. Wife
times asked husband to
any
or the record in
move out of the house.
way
he
any-
reflects that
ever did
14. Wife stood in front of the shower
thing
woman).
improper with this
get
would not let husband
into
5. Wife was uncommunicative and unso-
thought
the shower because she
he
example
ciable. A vivid
was that she
not
did
need one.
speak
days
would not
to him for two
hepatitis
15. Husband had
and could not
at a time.
gave
work. The doctor
him advice.
6.
Baptist
Husband was a deacon in the
Upon
home,
returning
he was to
Church.
like
going
Wife did not
generally get
easy
into work on an
meetings.
to these
There was noth-
e.,
program,
rehabilitative
many
i.
so
suggest
any time,
at
as a
Church,
per
then,
hours
Baptist
day;
deacon
that he
increase his
any way improperly consorting
was in
daily workload as he improved.
with
suspected
women. Wife
it. She
work,
go
Husband tried to
did not
him
want
to leave the house
tired, and came home. When wife
and did not want him involved in any
him,
saw
she censured him in ob-
religious extra-curricular activities.
language, belittling
scene
early
girls
Husband became a director of a
return home.
go
club in Sioux Falls and had to
mentally
Husband was affected
meetings. Wife resented this.
physically by wife’s conduct. He
8. On
play
weekends husband would
pain
testified he had a
in his back
golf. He went
Thursday night
to the
years.
five or six
When he
stags in
Falls.
go
Sioux
Wife would
family
moved from the
he
home
tes-
there, check his car and lurk in the
pain
tified
away;
went
he testi-
parking
home,
lot. When he returned
fied he was tense and suffered men-
she
clothing,
would check his
anguish
tal
due to the discord in the
hankies, and his money.
marriage.
9. The
were married in 1950. In
problems
Wife testified that all the
in the
1959, wife cut husband with a knife
marriage started in
after he hired the
because he
hello
babysit-
had said
to a
girl (the
new
secretary who received the
ter from next door that had come
ring).
testified,
ap-
diamond
Wife
over
party.
(This
to a lawn
demon-
pears
erroneous,
patently
there had
distrust,
strates the
heckling,
problems
been no definite
in the
and cruelty).
up
sort
until the time
husband
10. Wife repeatedly checked on husband
However,
girl.
hired the new
in 1972
hang
the office and would later
sought
marriage counseling
out
con-
up
phone
identifying
without
cerning
problems
herself.
obviously
gift
which were
unrelated to the
11. When
try
husband would
to show
of the
secretary.
diamond
by putting
wife affection
his arms or
her,
findings
part
hands on
of the trial
she would tell him
court
your
“take
off
hands
of me!”
as follows:
(S.D.1978);
Masek v.
forty, 272 N.W.2d
IV
Masek,
228 N.W.2d
89 S.D.
That
the defendant has treated
Pochop, 89
Pochop v.
cruelty and has
plaintiff with extreme
trial court believed
suffering upon
grievous mental
inflicted
unimpressed with the
and was
husband
by engaging in activities
majority opinion is
testimony. The
wife’s
which have made it
with the wife’s testi
apparently impressed
relation;
tiff to continue in the marital
secretary-diamond ring
regarding the
mony
part of the de-
that said conduct on the
consider the decision
I therefore
scenario.
plaintiff to suffer
fendant has caused the
departure
a sub silentio
majority
mentally affecting
physically
both
Additionally,
defense
from these cases.
health;
a cause
physical and mental
statutorily re
of recrimination has been
thereby
of action
exists in favor
If, indeed,
gave the secre
husband
pealed.
defendant.
against
estop
ring, this should not
tary a diamond
*4
obtaining a divorce from
husband from
V
for a
her decision to not sue
wife.
It was
cruelty of the de-
That
the extreme
divorce.
fendant
is
in the fact that for
reflected
Pochop, supra,
this court
Pochop
In
v.
past
years
the
several
the defendant on
there can be no set
essentially held that
repeated
refused to communi-
occasions
cruelty applicable to
definition of extreme
plaintiff;
the
cate in
manner with
setting.
held that
the
every marital
We
repeated
on
occasions ad-
that defendant
involved, in
parties
ad-
personalities
going
she was
plaintiff
vised the
factors,
other
must be
dition to a number of
as the children were
divorce him as soon
determining
should fall
in
what
considered
plaintiff
age;
of
that she asked the
of a workable mari-
parameters
within the
on several occa-
move out of the house
what will not. We
tal
sepa-
parties
and the
have now been
sions
light
in
of
now view this case
should
living apart
June of 1975.
herein,
rated and
since
holding.
I consider the facts
past
above,
Further that defendant for the
sev-
to be far more
outlined
Pochop.
distrustful of
eral
has been
sustained in
than the
tiff,
checking
clothing
periodically
trial court’s find
We cannot set aside the
billfold, calling the office to find out if
clearly errone
ings of fact unless
hanging
present
and then
are,
review of all the
ous and we
after a
play-
while
up, checking
on the
evidence,
a definite and firm con
left with
ing golf, objected to attendance at busi-
Ze
that a mistake has been made.
viction
ness,
meetings;
other
Army Reserve and
Research, Inc.,
Corp.
Radio
v. Hazeltine
nith
objected
plaintiff’s
that defendant
1562,
100,
267 (extreme Oklahoma: North Dakota definition identical): Approving language previous of its granted be holdings,
A decree
divorce
the Oklahoma
infliction
this state
reason of the
stated:
suffering although
such
“Extreme cruelty” as defined in Robert-
suffering produced
bodily injury.
Rasz
Robertson,
299,
387,
son v.
73
176
Okl.
P.
Raszler,
(N.D.1954);
ler v.
64
358
N.W.2d
applied
in a
line
cases includ-
352, 125
Rindlaub,
Rindlaub v.
19 N.D.
N.W.
Peterson,
68,
ing Peterson v.
206 Okl.
240
DeRoche,
(1910);
479
12 N.D.
DeRoche v.
1075,
part
P.2d
is conduct on the
of either
17,
(1903);
Conduct on the
of either
health,
seriously impair
bodily
as to
unjustifiable,
which is
and which grievously
utterly destroys
legitimate
such as
feelings
wounded the mental
of the other so
matrimony.
ends of
health,
impair
bodily
as to
the other’s
or to
cause destruction of the ends of
Vincent,
470, 473,
Vincent v.
208 Okl.
cruelty.
constitutes
Fleck v.
(1953).
P.2d
Fleck,
79 N.D.
* repealed this statute. California has now circumstances, to con connection with other Hiecke, 163 Wis. cruelty.
stitute Hiecke v.
171, 157 (1916); Reinhard v. Rein N.W. 747
hard, 96 Wis. granting the trial court in
I would affirm perpetrat-
the husband a divorce. The open incivility,
ed of intentional hos- manifestation of set-
tility and exhibited a This con-
tled dislike toward her husband. love, of mar-
duct lashes the cornerstone
riage. majority opinion, due to its decision reversing court on the divorce the trial
issue, the other two remain- did not address supposed inequitability of issues: The property urged and the un- settlement
constitutionality of 25-4r-41. I like- compelled
wise feel to non-review of these question
issues as the constitutional urged urged appellate
first level and well,
inequitable property division of could future, surface before this court. state that Jus- hereby
I am authorized to joins
tice Posheim in this dissent. *6 COMPANY, Plaintiff
BERVEN Respondent, NEWMAN,
Betty Defendant J. Appellant.
No. Dakota. of South
Supreme Court 15, 1979. March
Argued July
Decided 15, 1979. Aug.
Rehearing Denied