*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, 23 L.Ed.2d 129 395 89 S.Ct. U.S. wearing clothing; dress Clinic, (1969); Cunningham v. Yankton P. counseling on occasions from obtained A., (S.D.1978); 262 508 Schutterle N.W.2d professional two different counselors but (S.D.1977); Schutterle, v. 260 N.W.2d 341 could not be recon- the difference 601, Hileman, Collegian 88 226 The v. ciled. (1975); re of Hobels 163 Estate N.W.2d 282, (1970). 181 N.W.2d 455 berger, 85 S.D. It is therefore obvious to me that the lower approved cases was language in these findings fact are in accord with court’s of 26, 1979, April in by this court as recent 15-6-52(a) provides testimony. (S.D. V.D.D., 194 Matter of set part: “Findings of fact shall not be ignores by si 1979). majority opinion erroneous, re clearly aside unless and due precedent. rule of law and lence this gard given opportunity shall be of judge credibility statute, of of the trial court to what is the terms of our Under hus- Spaulding Spaulding, suffering? v. Did the witnesses.” Isaak, our sister (S.D.1979); 278 N.W.2d 639 Isaak v. endure it? Let us examine band (S.D.1979); Holforty Hol 278 N.W.2d 445 v. states.

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); 94 N.W. 767 Mahnken v. Mahnk spouse grievously so wounds the en, 188, (1900). 9 N.D. other, feelings or so utterly other, destroys peace mind of part spouse

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. 58 N.W.2d 765 Kansas: Thompson Thompson, 32 N.D. Saint, In Saint v. 196 Kan. 411 P.2d N.W. 492 (1966), repeatedly angered the wife was Colorado: *5 husband, pout at her would and sulk and “ cruelty may ‘Mental be inflicted . basement, retire to her bedroom or the use of words or acts or conduct con- days speak at a time would refuse to quarreling finding stitutes or fault communicate. The Kansas health, which are such as to affect cruelty. Ap- held this constituted extreme well-being peace or the of mind of either of decisions, proving previous it expressed: parties.’ (Emphasis added.)” Cochran contemplated by “Extreme Cochran, 99, 101, 752, v. 164 Colo. 432 P.2d longer regarded the divorce statute is no (1967), quoting 753 the trial court’s defini- being physical limited to acts of vio- cruelty. tion of mental better lence. The modern and considered * (statute except California identical repudiated cases have the ancient doc- word; one “wrongful it states infliction” requiring physical trine violence as too “infliction”): rather than low and sensual a view of the section, defining Under this “extreme held, generally relation. It is now and in cruelty” justifying a wrong- divorce as the rule, long this state it has been the grievous bodily ful infliction of injury or any unjustifiable long practiced suffering, wrongful in- spouse course of conduct towards fliction of suffering is “ex- utterly destroys legit- the other which cruelty,” though treme injury no objects matrimony imate ends and con- spouse injured health of the is caused there- cruelty though physi- stitutes by, single cruelty may and a act of be inflicted, personal cal or violence be nature, such a though solely it consists or threatened.” charges, unfounded as not to inflict the Saint, 331, 411 at v. 196 Kan. at P.2d Saint most suffering, but also to 686, 162 quoting Hayn Hayn, Kan. subsequent render living to- 189, 127, (1946). 175 P.2d wife, gether of justifying husband and a Wisconsin: Anderson, divorce. Anderson v. 68 Cal. App. speak 228 P. 715 to the other spouse MacDonald v. Refusal of a MacDonald, held, (1909). 155 Cal. has been period P. for a of time

* 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