Radermacher v. Radermacher , 59 Idaho 716 ( 1938 )

Appellant, cattleman and rancher, and respondent, school-teacher and housewife, husband and wife since April 24, 1921, with four minor daughters, ages 13, 11, 9 and 3 years respectively, became beset with marital difficulties, with the result that appellant sued for divorce on the ground of cruelty, which respondent resisted and asked for separate maintenance, resulting in a decree denying the divorce, granting separate maintenance, and custody of the children to respondent and awarding her all the property, real and personal, both community and separate, from which this appeal was taken.

Appellant makes several assignments of error which may be grouped as follows: That the court erred in making certain findings and in concluding that respondent was entitled to separate maintenance and in denying the divorce; that the court erred in awarding all the property to respondent; and that objections to certain questions propounded by appellant were erroneously sustained.

In order to consider the last group it is necessary to briefly review the alleged grounds of divorce, recrimination and claim for separate maintenance and evidence relative thereto.

Appellant claims respondent had been guilty of cruelty in that she had called him vile names, slapped him, swore at him, and untruthfully told neighbors that he was unduly intimate with women. Respondent denied the vile language, physical violence, admitted telling of his relations with one woman, and asserted appellant had inflicted cruelty on her in that he had been unduly intimate with women and at times had inflicted physical violence upon her.

Though not in the pleadings, evidence was introduced by both sides, pro and con, to the effect that respondent had truthfully and untruthfully told that appellant had infected her with an infectious venereal disease, and among other evidence respondent testified in substance that she went to Boise for treatment and that she understood she had a venereal disease which she could have received only from appellant. On cross-examination appellant attempted to ascertain from respondent what a physician, she had consulted, had told her with regard to her condition. The objection was that it would disclose a confidential relationship and that it was hearsay. Neither ground was good (sec. 16-203, I. C. A.) and the objections should not have been sustained.

Appellant denied he had had an infectious disease or infected respondent. If respondent had not had a venereal disease but had told that appellant had infected her with such it would tend to have some effect on the question of who was guilty of cruelty (Callahan v. Callahan, 33 Idaho 241, 192 P. 660;Morrison v. Morrison, 38 Idaho 45, 221 P. 156), as would likewise be the situation if appellant had infected her with a venereal disease.

The findings are so general that it is impossible to tell whether the court considered the above or whether he considered only that appellant had been unduly intimate with a woman. In view of this state of the record it is better to remand the case to permit answers to these questions, and allow both parties to present any additional evidence in connection with this phase of the controversy they desire, the court to make specific findings thereon.

Since the case is thus to be remanded we will not further consider the sufficiency of the evidence or the award of the property, other than to say that while separate maintenance may be granted in this state (Sauvageau v. Sauvageau, 59 Idaho 190,81 P.2d 731), we do not have a statute such as section 137 Civil Code of California (vide, Walker v. Monson, 49 Idaho 468,289 P. 86, holding a separate maintenance judgment, under the circumstances there disclosed was not subject to collateral attack), and in the absence of such statute only a protected and assured award for the maintenance, care and support of the wife and children, and education of the children may be made and neither a division nor transfer of the property, because the marital relationship continues. (Decker v. Decker, 56 Mont. 338,185 P. 168; Durham v. Durham, 104 Ohio St. 7,135 N.E. 280; Anderson v. Anderson, 140 Okl. 168, 282 P. 335, 74 A.L.R. 1231; Daily v. Daily, 48 Ohio App. 83, 192 N.E. 287; 1 R. C. L. 926, sec. 75; 30 C. J. 1090-1092.)

The cause is remanded with instructions to proceed in accordance herewith.

Awarding of costs to await the final disposition of the cause.

Holden, C.J., and Morgan, Ailshie, and Budge, JJ., concur.

ON REHEARING. (February 8, 1939.)