Rogers v. Rogers , 35 Idaho 645 ( 1922 )

RICE, C. J.

Appellant commenced an action for divorce on the ground of extreme cruelty. Respondent denied specifically the acts of cruelty alleged in the complaint and filed a cross-complaint for divorce charging extreme cruelty on the part of appellant. The court decreed that appellant take nothing by his action and entered a decree of divorce for respondent and awarded to her the custody of her minor child.

The court committed no error in denying a divorce to appellant and in dismissing his action. There was no corroboration of appellant’s evidence of cruelty. Appellant contends that the testimony of respondent in support of her cross-action for divorce also lacks corroboration. She testified that on January 4, 1918, appellant struck her and inflicted upon her person certain bruises. Two physicians testified that about that time they examined her and found certain bruises upon her person. Whether such evidence can be considered corroborative depends upon the circumstances disclosed by the evidence. If the examination by the physicians occurred immediately after the alleged assault and the circumstances show that it is improbable that the bruises were the result of any other cause than that charged by the respondent, such evidence would be corroborative. In this case neither physician could locate the exact date of this examination, but each testified that it was about the time stated by respondent.. We think the testimony of the physicians was slightly corroborative. (See Roelke v. Roelke, 13 Wis. 204, 78 N. W. 923.)

Respondent in her cross-complaint alleged and at the trial testified that appellant had accused her of being unduly intimate with one Potter and expressed his doubt as to the paternity of their child; also that he had applied vile and abusive epithets to her. Two letters from appellant to respondent were introduced in evidence in which he applied to her abusive names and in one of which he expressed doubt as to whether he was the father of her unborn child. He stated that he was practically convinced that he was not its father and felt a certain degree of happiness from the fact. From the record in this case it is apparent that these letters were not written through any collusive arrangement with respondent. They were not merely admissions on the part of appellant. They constituted acts of cruelty, and therefore corroborate her testimony. (Venzke v. Venzke, 94 Cal. 225, 29 Pac. 499.)

The evidence as a whole meets the requirements of the statute with reference to corroboration in divorce actions. (Bell v. Bell, 15 Ida. 7, 96 Pac. 196; De Cloedt v. De Cloedt, 24 Ida. 277, 133 Pac. 664; Donaldson v. Donaldson, 31 Ida. 180, 170 Pac. 94; Piatt v. Piatt, 32 Ida. 407, 184 Pac. 470.)

The appellant specified as error the action of the trial court in admitting and rejecting certain evidence. None of these specifications is well founded, except one. The action of the trial court in permitting respondent to testify as to what she had told her attorney after his employment by her, relative to her suspicions as to the insanity of appellant, is erroneous, but the matter is not of sufficient importance to be prejudicial to appellant and did not affect his substantial rights.

There being sufficient substantial evidence in the record to support the findings of the trial court, and sufficient corroboration to .meet the requirements of the statute, the decree of the court granting a divorce to respondent and awarding to her the custody of the minor child will be affirmed. (Hufton v. Hufton, 25 Ida. 96, 136 Pac. 605; Callahan v. Callahan, 33 Ida. 241, 192 Pac. 660; Broderick v. Broderick, 40 Cal. App. 550, 181 Pac. 402.)

Appellant also complains of that portion of the decree which adjudged and decreed the respondent to be the owner • as her sole and separate property of certain real estate conveyed to her by appellant after the marriage. Appellant’s action having been dismissed the court was not authorized to make any decree relative to property rights based upon his complaint. (Bell v. Bell, supra,.) Respondent in her cross-complaint made no mention of property rights and asked no relief with reference thereto. We think the court was without jurisdiction to include in the decree a judgment in effect quieting her title to the property. The court cannot go beyond the issues and pass upon a matter which the parties neither submitted nor intended to submit to its determination. (Miller v. Prout, 33 Ida. 709, 197 Pac. 1023; Black on Judgments, 2d ed., p. 323; Munday v. Pail, 34 N. J. L. 418.)

The cause will be remanded, with directions to modify the decree by omitting therefrom the portion adjudging respondent to be the owner of certain real estate,, and as so modified the judgment will be affirmed, each party to pay his own costs on this appeal.

Budge, McCarthy and Lee, JJ., concur. Dunn, J., being disqualified, did not sit at the hearing or take part in the opinion.