Orwick v. Orwick

PAULSON, Judge

(dissenting).

I dissent.

I believe that the plaintiff has proved her cause of action for divorce, which was based upon the statutory ground of extreme cruelty, by a preponderance of the evidence. A review of the record discloses that the plaintiff testified that her husband, the defendant, absented himself from the family home for long periods of time in the evenings and going into the early morning hours and that such activity on the part of the defendant toward the plaintiff made her very nervous and, as a result, upset the entire household; that, in addition thereto, her husband on occasions embarrassed her and ridiculed her in the presence of her friends, particularly in front of the hired men and the children. The plaintiff further testified that the defendant’s conduct made her very unhappy, very nervous, and extremely upset and that, as a result of such unhappiness and extreme nervousness, she would break down and, many times, cry. There is also evidence in the record that the defendant physically abused the plaintiff by slapping her on occasion, and that none of such testimony was disputed.

It is true that, in order to secure a divorce under our statutes, it is necessary that the parties’ testimony must be corroborated. The corroborating witness in this case was Jean Ann Kouba, who testified she .had known the plaintiff, Margaret Orwick, for a period of more than three years, and she had been acquainted with the plaintiff before her marriage to the defendant. This witness also testified that she had known the defendant ever since she could remember; in addition thereto, she was present during the testimony which was offered by Margaret Orwick and verified said testimony by indicating and positively stating that the testimony given by Margaret Or-wick was the truth. She further buttressed the testimony of the plaintiff by stating that she had personally observed the plaintiff and the defendant when they had attended various social activities together and she testified she had personally heard statements made by the defendant that would extremely upset the plaintiff, and that she observed that he would get up and leave the table and leave plaintiff alone, which would extremely upset the plaintiff and would result in the plaintiff shedding tears. In addition thereto, the corroborating witness testified that she had observed the plaintiff at other times when the plaintiff would be extremely upset, and that the plaintiff at such times came to Mrs. Kou-ba’s home and exhibited signs of emotional disturbances which resulted from disagreements between the plaintiff and the defendant.

It is particularly interesting to note that, at the conclusion of the testimony of Mrs. Kouba, the judge asked the defendant’s attorney if the testimony as to the cause of divorce was sufficient and, in reply, the defendant’s attorney stated that such testimony was sufficient. No attempt was made by defendant’s counsel to cross-examine or question the plaintiff or Mrs. Kouba, the corroborating witness; nor did the attorney for the defendant call the defendant or any other person to the wit-' ness stand to refute or deny any of the testimony which was given by the plaintiff, or the testimony of Mrs. Kouba as to the grounds for divorce.

I wish to further point out and indicate that ffie attorneys for the plaintiff and the *802defendant agreed that the custody of the two minor children should be awarded to the plaintiff, and further stipulated that the plaintiff was a fit and proper person to have the custody of the children.

The judge, to reinforce the testimony, requested that the parties, through their attorneys, stipulate that the plaintiff could proceed and obtain the divorce in plaintiff’s behalf without in any way affecting the property rights of either party, and the respective counsel for plaintiff and defendant so stipulated and agreed.

As a further basis for affirming the judgment of the district court, with reference to the granting of the divorce, it is interesting to note that the record further reveals that the defendant’s attorney requested that the plaintiff’s complaint be amended to include the second child, who was born after the commencement of the divorce suit.

Although the evidence as to the cause of divorce could have been much more specific, such evidence did, however, generally disclose unexplained conduct on the part of the defendant toward the plaintiff which made her very nervous, upset, and unhappy. I believe that the evidence establishes that the defendant caused the plaintiff grievous mental suffering, which conduct justified the court in granting a divorce to the plaintiff. To require the plaintiff to describe in detail all of the offensive conduct of the defendant under the circumstances of this case would result only in unduly lengthening the proceedings and, further, would greatly lessen the probability of reconcilement of the parties in the future.

The majority opinion apparently stresses the fact that the allegations of the plaintiff’s complaint were sufficient, but that there was a lack of proof and insufficient corroborating evidence. If material acts are corroborated, it may be assumed that uncorroborated testimony of the plaintiff to other ajcts is true. Wallace v. Wallace, 112 N.J.Eq. 292, 164 A. 565. A further analysis of proof of extreme cruelty, such as in this case, must necessarily consider the types or degrees of harm which are sufficient to prove extreme cruelty. This would, of course, involve the frailty, strength, or sensitiveness of the party affected, and it has been held that a nervous condition can well be sufficiently serious and harmful to meet the requirements of demonstrable harm. In Thompson v. Thompson, 16 Wash.2d 78, 132 P.2d 734, 735, the Washington court held that, under a statute allowing a divorce for cruel treatment or personal indignities rendering life burdensome:

“Language can, and frequently does constitute cruel treatment and render life burdensome. The test, however, is subjective rather than objective. It is not the words used, but the effect of them upon the aggrieved party that is determinative. * * * ”

Detjen v. Detjen, 40 Wash.2d 479, 244 P.2d 238. In 1 Nelson, Divorce and Annulment (2d ed. 1945) § 6.12, p. 241, it is stated:

“A good many decisions recognize that the relative frailty, sensitiveness or hardihood of the parties is a factor for consideration in determining whether there has been cruelty within the intendment of the divorce statutes. This factor has also been considered in determining whether a course of conduct amounted to ‘personal indignities.’ As said in one case [Button v. Button, 95 Ore. 578, 188 P. 180], what would be cruel to a delicate, sensitive woman might not be so to a ‘brawling fishwife.’ * * * The degree of intelligence, refinement and delicacy of health and sentiment, according to this line of authority, are matters for the court to weigh with others in determining whether the conduct complained of was cruel. * * * ”

It appears that Margaret Orwick was a well-educated woman, in that she was a graduate medical technician and, in addition, had been an airline hostess for a *803period of time. The record further reveals that Margaret Orwick had been previously married and that she was accustomed to living in fine surroundings and in associating with educated and intelligent persons of substantial income. The record further reveals that she had resided in larger cities and her mode of living changed considerably after her marriage to Mr. Orwick. She was apparently a sensitive woman who was hurt deeply by her husband’s conduct.

This court, in Savre v. Savre, 77 N.D. 242, 42 N.W.2d 642, affirmed the district court in denying a divorce to the plaintiff. However, the Savre case is distinguished from the case at bar in that in Savre this court found that there was not a continuous course of fault-finding, threats, or other acts intended to aggravate and annoy the other party to the marriage, and thus that the acts did not cause such a degree of mental suffering as to constitute a ground for divorce on the ground of extreme cruelty. This court in the Savre case stated that the record establishes that the plaintiff and defendant were incompatible and that incompatibility is not a ground for divorce in the State of North Dakota. I think the facts in the instant case disclose more clearly acts of cruelty and the degree thereof.

Again this court, in Henry v. Henry, 77 N.D. 845, 46 N.W.2d 701, held that the plaintiff’s allegations that the defendant treated her with extreme cruelty which caused her grievous mental anguish were not sustained by the evidence. The factual situation in the Henry case is vastly different from the facts in this case, in that the Henry case was a contested action in the district court, whereas in the case at bar there was no evidence presented by the defendant to refute the testimony of the plaintiff or her corroborating witness, Jean Kouba. The Henry case is further distinguished on the ground that the evidence which was presented at the trial in the district court failed to indicate that the defendant had conducted himself in such a manner as to come within the provisions of the statute providing for a divorce on the ground of extreme cruelty.

In this case the district judge had the opportunity of observing the witnesses, that is, Margaret Orwick and the corroborating witness, Jean Kouba, as well as the defendant Glenn Orwick, and was able to determine from the testimony the credibility of the witnesses and the inferences to be drawn from their testimony. Pauly v. Haas, 84 N.W.2d 302 (N.D.). The trial judge, after hearing the evidence, was able to better determine whether or not the plaintiff was entitled to a divorce and so indicated in the findings of fact, which are a part of the record. As stated in 24 Am.Jur.2d, Divorce and Separation, § 53, p. 223:

“In order that any type of mental cruelty may constitute a cause of action it must produce a result which is variously described as grievous mental suffering, or impairment of health, or endangering life or limb. * * *
“The question whether the accusations l^ave caused the required effect upon mind and body is one of fact; * * * it has been held that the court may presume that the charges have had their natural and probable consequence of causing mental suffering.” [143 A.L.R. 629, 642.]

This court has followed the principles enunciated in Nelson, Divorce and Annulment, supra. In Mahnken v. Mahnken, 9 N.D. 188, 82 N.W. 870, 872, the court stated:

“ * * * courts here tread upon delicate, and perhaps uncertain, grounds. The differences in mental characteristics are as varied as the differences in facial expression. The effect upon two minds of the same act or language may be entirely different, and the effect upon one may be incomprehensible to the other. It is clear, then, that no standard can *804be erected, no measurements given, and no criterion established by which to gauge mental suffering. This is a point upon which this court would be inclined to give much weight to the views of the trial court. The complainant was before that court, and was examined at great length. All her mental characteristics would be much more apparent there than they can be from a study of the record. * * * ”

Again, in Swanson v. Swanson, 75 N.D. 332, 28 N.W.2d 73, this court held that:

“Whether one party to an action for divorce has inflicted grievous mental suffering upon the other is a question of fact to be determined from all the circumstances in the case.”

And, in Raszler v. Raszler, 64 N.W.2d 358 (N.D.), this court said:

“In an action for divorce upon the ground of extreme cruelty the question of whether one party to the marriage has inflicted grievous mental suffering upon the other is one of fact to be determined from all of the circumstances of the case, taking into consideration the sensibilities of the litigants, their intelligence, viewpoints, sentiments, and health.”

This court in making such a determination de novo will give appreciable weight to the findings of fact of the trial court. Swanson v. Swanson, supra; Agrest v. Agrest, 75 N.D. 318, 27 N.W.2d 697.

Again, it is interesting to note that, in the case of Hodous v. Hodous, 76 N.D. 387, 36 N.W.2d 552, this court held and defined “mental anguish’ as being the equivalent of grievous mental suffering.

In conclusion, I am of the opinion, and believe, that where the trial court had the opportunity to hear and observe the litigants testify in detail concerning the property of the parties, the trial court’s findings relative to the division of the property should not be set aside unless there has been a showing that the trial court abused its discretion. Fischer v. Fischer, 139 N.W.2d 845 (N.D.). I find no abuse of discretion here. I accordingly would affirm the trial court’s judgment in all respects.

ERICKSTAD, Judge.

I concur in Judge Paulson’s dissent.