Appellant commenced this action against respondent to procure a decree dissolving their bonds of matrimony and awarding to him certain property described in the complaint. The trial resulted in a decree that the marriage be not dissolved, from which this appeal is prosecuted.
The cause of action stated in the complaint, and which evidence introduced on behalf of appellant tended to establish, is extreme cruelty, which I. C. A., sec. 31-605, defines as follows:
"Extreme cruelty is the infliction of grievous bodily injury or grievous mental suffering upon the other by one party to the marriage."
It is not contended Mrs. Clark inflicted bodily injury on her husband, but he alleges her conduct caused him grievous mental suffering.
Mr. and Mrs. Clark were married in 1925. Each had been married before and he is the father of a daughter and four sons, who are grown, the issue of his former marriage. Most of their disagreements arose from two causes: 1. Her extreme dislike for his children. 2. She filed a declaration of homestead on his separate property, which they occupied as their place of residence, and refused to join him in mortgaging it, which refusal resulted in litigation between them prior to the commencement of this action. (Clark v. Clark, 56 Idaho 6,47 P.2d 914.) The acts of cruelty relied on by appellant, other than the refusal to join in the mortgage, consisted, largely, of epithets which, evidence introduced on his behalf tended to show respondent applied to him and his children. The evidence on this point is conflicting and, with respect to this phase of the case, the trial judge found:
"That defendant disliked plaintiff's adult children and that her conduct in this regard tended to promote a lack of harmony in the household and was undoubtedly carried to unjustifiable extremes; that defendant's use of epithets toward either plaintiff or his adult children in this respect is not sufficient of itself to constitute extreme cruelty." *Page 40
In Piatt v. Piatt, 32 Idaho 407, 184 P. 470, the first section of the syllabus, which was by the court and correctly reflects the part of the opinion it relates to, is as follows:
"1. Where a divorce is sought on the ground of extreme cruelty, causing grievous mental suffering, the evidence must be sufficient to satisfy the trial court that the party at fault has been guilty of acts of cruelty which have caused grievous mental suffering to the complaining party. The finding will not be disturbed unless the evidence in support thereof is so slight as to indicate a want of good judgment and an abuse of discretion by the trial court."
On the point that respondent refused to join appellant in the execution of a mortgage on his separate property, it was shown that because of her refusal he was unable to refinance the mortgage indebtedness, which existed against it, and that the mortgage was foreclosed and a sheriff's deed had been issued whereby he had been divested of his title and would lose possession at the expiration of the period of redemption. Respondent testified she refused to join in the execution of the mortgage because appellant insisted it be made to the Federal Land Bank, which required that one of his sons join in the execution of it, and that the son had stated if he got control of the property he would not allow her to occupy it; that she was at all times willing, and had so informed appellant, to join him in the execution of a mortgage which would not result in giving his son a hold on, or control of the property. Just what interest in or control of the property the son would have had by joining in the execution of the mortgage is not clear, but it is the reason assigned by respondent for her refusal to join in the execution of it.
In Clark v. Clark, supra, we held respondent herein was within her legal rights when she filed a declaration of homestead on appellant's separate property, and, of course, she could not be compelled to join in the execution of the mortgage. It is insisted by counsel for appellant, however, that a legal right may be so exercised by one spouse as to constitute extreme cruelty to the other. That contention may be sound, but it is not necessary for us to decide, in this case, whether it is or not. *Page 41
The trial judge found "that the defendant filed a declaration of homestead upon the plaintiff's separate property and that she was within her rights in so doing, and that the same does not constitute extreme cruelty under the statute." (SeeHofman v. Hofman, 40 Ind. App. 476, 82 N.E. 477.) The findings of fact, conclusions of law and decree show a copy thereof was received by counsel for appellant. If they made any objection to that finding or requested the trial judge to find respondent's acts in placing the declaration of homestead on appellant's separate property and in refusing to join him in the execution of a mortgage on it were wrongful or malicious, or done with intent to, or did, inflict on him grievous mental suffering, the record does not disclose it.
Appellant's counsel has caused to be filed herein by the clerk of this court, a certified copy of a document entitled in this case and called "Memorandum Decision," which appears to have been signed by the trial judge and filed in the district court prior to the making of findings of fact and conclusions of law. They rely on certain statements in this document to sustain their contention that the judge, in finding the filing of the declaration of homestead "does not constitute extreme cruelty under the statute," stated the meaning he attributed to our decision in the former litigation between these parties and was not an expression of his decision on the question of whether respondent's conduct with reference to appellant's separate property constituted extreme cruelty on her part toward him.
The "memorandum decision" is not properly before us for consideration. Furthermore, the law does not require trial judges to render such decisions, and they will not be given controlling weight by this court in affirming, modifying or reversing judgments appealed from. If the decision of a district judge, consisting of findings and conclusions, follows the law and is supported by the evidence, the judgment should be upheld and affirmed whether the theories which prompted its rendition were sound or unsound. If the decision violates the law or is not supported by the evidence, the judgment should be reversed although the judge who rendered it may have expressed sound theories, in communications to *Page 42 counsel, prior to its rendition. (North Robinson Dean Co. v.Strong, 25 Idaho 721, 139 P. 847; Corker v. Cowen, 30 Idaho 213,164 P. 85; Baldwin v. Singer Sewing Machine Co., 48 Idaho 596,284 P. 1027.) Fleming v. Bithell, 56 Idaho 261,52 P.2d 1099, does not go to the extent of holding "memorandum decisions" of trial judges may be used to impeach their findings of fact.
The evidence sustains the findings, and the decree is affirmed. Costs are awarded to respondent.
Holden and Ailshie, JJ., concur.
Givens, J., dissents.