ON THE MERITS
Leo Levenson and Larry Landgraver, Portland, filed a brief for respondent. WARNER, J.Tbe defendant, Josephine O. Hinckley, appeals from a divorce decree in favor of the plaintiff, John E. Hinckley.
John and Josephine were married at Engene, Oregon, in July, 1946. No children were born to this union and there are no property rights to be adjudicated.
In September, 1953, Josephine instituted a suit for separate maintenance and support. She secured a favorable decree in that matter on the thirtieth day of October, 1953.
While the parties were still living separate and apart, pursuant to the decree of 1953, John instituted this suit for divorce in 1955, alleging as grounds cruel and inhuman treatment and personal indignities rendering his life burdensome. In the catalogue of indignities (but not as a separate cause of action) he includes allegations of two separate acts of adultery with a party therein named.
Josephine, in her answer, denies the allegations of cruel and inhuman treatment which necessarily includes the allegations of adultery. She makes three separate and further answers of no importance to this appeal. Among other things, she pleads the existence of the decree of separate maintenance and innumerable departures from the ways of marital rectitude on the part of the plaintiff. Many of these relate to matters occurring prior to the decree of 1953. She. asks for no relief except for attorney’s fees and costs.
Appellant’s first assignment of error claims that the circuit court acquired no jurisdiction because of the *37want of an appearance by the district attorney as required by OES 107.040.
The appellant is concluded on her first assignment by Costello v. Costello, 120 Or 439, 441, 251 P 303. In the Costello case the deputy district attorney assigned the duty to appear for his superior in divorce suits in Multnomah County, in response to a charge that there had been no appearance by the district attorney, made an affidavit after trial and decree “to the effect that he did appear and discovered that the case was being defended in good faith and for that reason did not remain through the trial.” (120 Or at 441) We there held the affidavit was sufficient to support the record of an appearance by that official. We note that Miss Zimmerman, a deputy in the office of the District Attorney for Multnomah County, makes an affidavit here which is almost identical with that in the Costello case.
We think the instant record sufficiently discloses an appearance by the district attorney.
Appellant’s second and last assignment of error is addressed solely to what she claims to be the insufficiency of evidence necessary to sustain the charge of adultery alleged in plaintiff’s second amended complaint where, as we have noted, it is pleaded as one of the charges of cruel and inhuman treatment. She gives no recognition to other testimony offered in support of the cruel and inhuman treatment charge nor does she discuss her unusually friendly, frequent and markedly indiscreet relations with the party ae- ' cused as her paramour with reference to the possibility of having probative value in support of plaintiff’s charge of marital cruelty.
We have examined the record with great care and we are persuaded that the evidence offered as proof *38of adultery when tested under the strict rules laid down in Parsons v. Parsons, 197 Or 420, 253 P2d 914 (1953) and Jenkins v. Jenkins, 103 Or 208, 221, 204 P 165 (1922) is insufficient to support a decree of divorce on that ground. In view of our conclusion that the decree should be affirmed for other reasons, we find it unnecessary to encumber the record with any part of the unsavory testimony which snggested the probability of acts of adultery. Suffice to say that much of the evidence in the record which pointed to such a meretricious relationship on the part of defendant and her correspondent, while insufficient to prove guilt, nevertheless, reveals conduct out of line with concepts of marital loyalty and of such frequency and boldness that it has probative value supporting plaintiff’s charge of defendant’s cruel and inhuman treatment.
Legal cruelty exists in many cases where a spouse’s associations with other persons of opposite sex are improper and degrading, especially when such acts are flaunting in character and a source of vexation or humiliation to the other member of the marital union. Keezer, Marriage & Divorce (3d ed) 435, §370; 17 Am Jur 191, Divorce and Separation § 84 (and the 1956 Cumulative Supplement thereto at p 42); 27 CJS 551, Divorce § 28. Also see Annotations 157 ALE 631 for editorial comment and cases concerning conduct of a spouse with persons of opposite sex as cruelty justifying a divorce.
The facts and holding in Flanagan v. Flanagan, 188 Or 126, 143, 213 P2d 801 (1950) evidence the kind of legal cruelty decried in the foregoing citations to legal texts and encyclopedias. .In Flanagan, the husband was guilty of frequent statements indicating a lack of regard and respect for marital fidelity. He knew of *39his wife’s suspicion that he was having illicit relations with her married sister and would insinuate, though not confess, that the suspected relationship was actually as she believed it to be. This conduct on the defendant husband’s part, we held, constituted extreme cruelty under the statute, although no personal violence was inflicted or threatened, because it caused the plaintiff wife such mental suffering as to utterly destroy the legitimate ends and objects of matrimony. Also see Goodman v. Goodman, 165 Or 141, 149, 105 P2d 1091; Neely v. Neely, 162 Or 610, 611, 94 P2d 300, Billion v. Billion, 137 Or 622, 630, 1 P2d 1108, 3 P2d 1113; Noble v. Noble, 97 Or 497,190 P 1061.
The conduct of the defendant in the case at bar in her relations with her husband’s former roommate although perhaps not culminating in provable adultery, yet were attended and manifested at times and places with actions, that would convince the most naive, that the parties involved were near the brink of a breach of the Seventh Commandment. Even if we call them, less harshly, “indiscretions,” yet they were indiscretions of a kind which did cause plaintiff much mental suffering and humiliation to the end that it utterly destroyed the legitimate ends and objects of their marriage.
In arriving at the conclusion we do, we attach no special legal significance to the fact that plaintiff instead of pleading adultery as a separate cause of suit, pleaded it as an additional charge in support of his basic ground of cruel and inhuman treatment.
Each party to pay his own costs.
Affirmed.