Clark v. Clark , 58 Idaho 37 ( 1937 )

I. C. A., section 31-605, defines extreme cruelty as follows:

"Extreme cruelty is the infliction of grievous bodily injury or grievous mental suffering upon the other by one party to the marriage."

The court found in its finding number four:

"That defendant (respondent) disliked plaintiff's adult children and that her conduct in this regard tended to promote a lack of harmony in the household and was undoubtedly carried to unjustifiable extremes; that defendant's use of epithets towards either plaintiff or his adult children in this respect is not sufficient of itself to constitute extreme cruelty."

The record further discloses that altercations and quarreling took place between the parties to the action since the spring of 1935. Assuming that the court had reference to the epithets testified to by witnesses as having been used by respondent toward appellant and his children, a reading of the record discloses that such epithets are unprintable and are of such a character that it would be inconceivable to conclude that they did not inflict grievous mental suffering. True, the finding fails to set out the epithets in detail. If for no other reason, the cause should be remanded with instructions to the trial court for the purpose of making its findings more definite and certain. In other words, to definitely find what epithets were actually used by respondent toward appellant and his children, what her conduct was that tended to promote a lack of harmony, and in what way and in what respect it was undoubtedly carried to unjustifiable extremes. Mere general findings which in effect are conclusions are not helpful where there is a conflict in the evidence, and it is the duty of the trial court to find upon each and every material issue made by the pleadings.

If respondent's conduct toward appellant consisted in constant quarreling, nagging and swearing, and use of language by her toward appellant and his children as testified to by the witnesses there was ample evidence to support a finding of extreme cruelty as defined by the statute, supra, and the court's conclusion: "That the bonds of matrimony between plaintiff and defendant be not dissolved," and his judgment based thereon, are not supported by the evidence.

The entire record discloses that there is neither harmony, confidence, respect or affection existing between the parties to this action, and that such has not existed since 1935, at which time appellant, finding himself in distressed circumstances, sought to refinance his farm and save his home. Respondent did not cooperate with him but filed a declaration of homestead, which, as was held in Clark v. Clark, 56 Idaho 6,47 P.2d 914, an action between the same parties, she had an absolute legal right to do. If I understand the conclusion that the court reached in construing the foregoing opinion, it was to the effect that the opinion held that the filing of the declaration of homestead did not constitute extreme cruelty. In that case the court simply held that respondent had an absolute legal right to file a declaration of homestead. In my opinion the court should have taken into consideration all the facts and circumstances leading up to the action of respondent in this regard, the result that followed, the motives and purposes that prompted respondent's action, as well as all other facts and circumstances developed upon the trial. In making the findings, conclusions and judgment all facts and circumstances should have been considered.

The judgment should be reversed with instructions to the trial court to make full and complete findings upon all the material issues; otherwise the judgment should be reversed and a decree awarded in favor of appellant.