The finding negatives adultery, and as no corrections are asked for, the case turns on two questions: (a) whether on the whole finding the court erred in ruling that intolerable cruelty had not been proven; and (b) whether the court erred in refusing to grant a continuance.
In view of our recent decisions on the subject of intolerable cruelty as a ground of divorce, it is unnecessary to restate the law. Jacobs v. Jacobs, 95 Conn. 57,110 A. 455; Sweet v. Sweet, 97 Conn, 693,118 A. 36; McEvoy v. McEvoy, 99 Conn. 427, 122 A. 100.
It is enough to repeat that, as the phrase imports, intolerable cruelty has a subjective as well as an objective significance. There must not only be proof of acts of cruelty has on the part of the defendant, but proof that in their cumulative effect upon the plaintiff they are intolerable in the sense of rendering the continuance of the marital relation unbearable by him. *Page 4
In this case the finding already quoted is wholly inconsistent with any claim that the defendant's conduct was intolerable by the plaintiff in the statutory sense.
We attach no controlling importance to that part of the finding which states that the defendant did not destroy the plaintiff's love for the defendant, because it is possible that affection may survive after the limit of physical or mental endurance has been passed. But the finding that notwithstanding the defendant's conduct the plaintiff, being in good health, desired and intended to continue living with her and after being excluded from the home still desired to resume living with her, establishes beyond controversy the fact that her conduct was not such as to render the continuance of the marital relation unbearable by him.
The defendant's conduct was doubtless cruel and hard to bear, but since the plaintiff remained both able and willing to tolerate it, and still desired to continue to live with her, it was not intolerable in fact or in law. "It is only when the cumulative effect of the defendant's cruelty upon the suffering victim has become such that the public and personal objects of matrimony have been destroyed beyond rehabilitation, that the condition of fact contemplated by the intolerable-cruelty clause of the statute (§ 5280) should be found to exist." McEvoy v. McEvoy, supra.
The trial court refused to grant the continuance asked for, on the ground that the evidence expected to be given by the missing witnesses would not materially affect the judgment; and that conclusion, as the memorandum of decision shows, was based upon the ground just stated: that no misconduct which the plaintiff was in fact able and willing to tolerate could amount to intolerable cruelty. For the reasons stated, we think the ruling refusing the continuance was not erroneous. *Page 5
Even if it be assumed that the testimony of these witnesses must have resulted in a finding that the marriage was never consummated, that condition also was tolerated by the plaintiff and did not make the continuance of the marital relation unbearable by him.
There is no error.
In this opinion the other judges concurred.