MR. JUSTICE CHEADLE
delivered the opinion of the court. Peter B. Anderson, the original plaintiff herein, died subsequent to perfection of the appeal, and the present plaintiff was substituted by order of this court. In the following opinion the said Peter B. Anderson will be referred to as the plaintiff.
Appeal from a judgment granting plaintiff a decree of divorce, denying defendant relief on her cross-complaint for separate maintenance, and ordering the defendant to vacate plaintiff’s home.
The complaint is based upon extreme cruelty, and in addition to alleging the infliction of grievous mental suffering in the language of section 5738, Revised Codes 1935, the complaint contains the following allegations of items of cruelty, which the trial court embodied practically verbatim in its findings of fact:
1. That defendant for more than two years last past has perpetually nagged, fumed and scolded at the plaintiff and treated him in an abusive and scornful manner.
2.
That defendant repeatedly called plaintiff “a big liar,” which gave rise to quarrels in the home and thus disturbed his peace of mind and happiness.
3. That ever since the spring of 1941 the defendant has refused to sleep with the plaintiff and persists in sleeping apart from him against his will and wishes.
4. That plaintiff’s former wife is deceased and there were several children the issue of his former marriage; that ever since the marriage of the parties hereto the defendant has continually run down and made slanderous remarks against his said children and has refused to make them welcome visitors in his
home, all of which has caused plaintiff great mental suffering.
5.. That defendant’s tirades against his said children are made maliciously and with the intent on the part of the defendant to hurt the feelings of plaintiff and to vex and annoy him.
6. That defendant maliciously accused the plaintiff of unchastity and marital infidelity, all of which was and is wholly false and untrue and without any foundation in fact whatsoever, and same caused plaintiff great anguish of mind and grievous mental suffering.
7. That for more than two years immediately preceding the commencement of the action the defendant has been guilty of extreme cruelty of and toward plaintiff by the infliction of grievous mental suffering upon plaintiff.
Simultaneously with the signing of the judgment the trial court rendered the following memorandum opinion, which was made a part of the record:
“It is my opinion, and I desire it to be made a matter of record in the case, that the defendant did not in any respect fulfill her duties to the plaintiff as a wife and that this course of conduct on her part commenced very shortly after the marriage between them. While the plaintiff is no longer a young man he was at least entitled to the consortium of his wife. To me, her excuse for locking her bedroom door against the plaintiff at night was utterly ridiculous and I feel the testimony justified the inference that she avoided the attentions of her husband and that her principal interest in the marriage was based upon the financial considerations which she thought would flow therefrom.
“I think the plaintiff’s allegations of cruel and inhuman treatment are fully substantiated by the evidence.
“ It is my view that, under the decisions of our supreme court, when a decree of divorce is entered against a wife, that she is not entitled to permanent alimony.”
All but two of thirteen specifications of error are directed at the findings and conclusions of the trial court. The other two assign error in rendering the memorandum opinion above quoted,
and permitting plaintiff to answer a question which we shall allude to later.
The sole question presented on this appeal is that of the suffieiency of the evidence to support the decree and judgment. The answer to this depends upon whether or not the evidence substantially established the infliction of extreme cruelty by the defendant upon the plaintiff, as contemplated by statute and as alleged in the complaint. At the outset we affirm and reiterate the rule that in cases of this nature the findings of the trial court will not be disturbed by this court where the record contains-substantial evidence upon which they may be sustained; that when the evidence furnishes a substantial basis for the findings they will be permitted to stand. Such rule is so firmly established and of such universal acceptance as to require no citation of authority.
Section 5738, Revised Codes 1935, defines extreme cruelty, so far as here applicable, as “* * * the infliction of grievous mental suffering upon the other by one party to the marriage, by a course of conduct towards or treatment of one party to the marriage by the other, existing and persisted in for a period of one (1) year before the commencement of the action for divorce, which justly and reasonably is of such a nature and character as so to destroy the peace of mind and happiness of the injured party, or entirely to defeat the proper and legitimate objects of marriage, or to render the continuance of the married relation between the parties perpetually unreasonable or intolerable to the injured party.”
■The parties intermarried at Missoula, Montana, on February 3, 1941. At that time plaintiff was 68 and defendant 54 years of age. This was plaintiff’s second and defendant’s third marriage. Each had children of previous marriages, but no issue resulted from this union.
Plaintiff was a man of considerable substance, being the owner of properties in Montana and elsewhere, including a lumber business at Cut Bank. Subsequent to their marriage the parties resided at Cut Bank, occupying a three-room apartment
for the first year or thereabouts. Thereafter they moved into a new six-room house, erected during that period.
We have read the record herein with the utmost care. Without here detailing the evidence on plaintiff’s behalf (consisting solely of plaintiff’s testimony) we conclude that it totally fails to support the findings hereinabove listed as findings 1, 4, 5, and 6 which, consequently, will not be permitted to stand. As to finding 1, plaintiff’s testimony suggests that the defendant, rather than nagging and scolding during the period alleged, was extremely uncommunicative.
We shall discuss the other findings, and the evidence respecting them, separately. First the findings that defendant repeatedly called plaintiff “a big liar,” which gave rise to quarrels in the home and thus disturbed his peace of mind and happiness. In this respect the plaintiff testified:
“Q. You allege in your complaint that she called you a-big liar. What about that? A. She called me a big liar a number of times. She repeatedly done that.
“Q. In connection with what? A. I don’t know as any one particular thing particularly. One thing, she always accused me of promising to give her the house. Well, of course, if she had lived with me like a good wife, the intention was, of course
“Mr.
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MR. JUSTICE CHEADLE
delivered the opinion of the court. Peter B. Anderson, the original plaintiff herein, died subsequent to perfection of the appeal, and the present plaintiff was substituted by order of this court. In the following opinion the said Peter B. Anderson will be referred to as the plaintiff.
Appeal from a judgment granting plaintiff a decree of divorce, denying defendant relief on her cross-complaint for separate maintenance, and ordering the defendant to vacate plaintiff’s home.
The complaint is based upon extreme cruelty, and in addition to alleging the infliction of grievous mental suffering in the language of section 5738, Revised Codes 1935, the complaint contains the following allegations of items of cruelty, which the trial court embodied practically verbatim in its findings of fact:
1. That defendant for more than two years last past has perpetually nagged, fumed and scolded at the plaintiff and treated him in an abusive and scornful manner.
2.
That defendant repeatedly called plaintiff “a big liar,” which gave rise to quarrels in the home and thus disturbed his peace of mind and happiness.
3. That ever since the spring of 1941 the defendant has refused to sleep with the plaintiff and persists in sleeping apart from him against his will and wishes.
4. That plaintiff’s former wife is deceased and there were several children the issue of his former marriage; that ever since the marriage of the parties hereto the defendant has continually run down and made slanderous remarks against his said children and has refused to make them welcome visitors in his
home, all of which has caused plaintiff great mental suffering.
5.. That defendant’s tirades against his said children are made maliciously and with the intent on the part of the defendant to hurt the feelings of plaintiff and to vex and annoy him.
6. That defendant maliciously accused the plaintiff of unchastity and marital infidelity, all of which was and is wholly false and untrue and without any foundation in fact whatsoever, and same caused plaintiff great anguish of mind and grievous mental suffering.
7. That for more than two years immediately preceding the commencement of the action the defendant has been guilty of extreme cruelty of and toward plaintiff by the infliction of grievous mental suffering upon plaintiff.
Simultaneously with the signing of the judgment the trial court rendered the following memorandum opinion, which was made a part of the record:
“It is my opinion, and I desire it to be made a matter of record in the case, that the defendant did not in any respect fulfill her duties to the plaintiff as a wife and that this course of conduct on her part commenced very shortly after the marriage between them. While the plaintiff is no longer a young man he was at least entitled to the consortium of his wife. To me, her excuse for locking her bedroom door against the plaintiff at night was utterly ridiculous and I feel the testimony justified the inference that she avoided the attentions of her husband and that her principal interest in the marriage was based upon the financial considerations which she thought would flow therefrom.
“I think the plaintiff’s allegations of cruel and inhuman treatment are fully substantiated by the evidence.
“ It is my view that, under the decisions of our supreme court, when a decree of divorce is entered against a wife, that she is not entitled to permanent alimony.”
All but two of thirteen specifications of error are directed at the findings and conclusions of the trial court. The other two assign error in rendering the memorandum opinion above quoted,
and permitting plaintiff to answer a question which we shall allude to later.
The sole question presented on this appeal is that of the suffieiency of the evidence to support the decree and judgment. The answer to this depends upon whether or not the evidence substantially established the infliction of extreme cruelty by the defendant upon the plaintiff, as contemplated by statute and as alleged in the complaint. At the outset we affirm and reiterate the rule that in cases of this nature the findings of the trial court will not be disturbed by this court where the record contains-substantial evidence upon which they may be sustained; that when the evidence furnishes a substantial basis for the findings they will be permitted to stand. Such rule is so firmly established and of such universal acceptance as to require no citation of authority.
Section 5738, Revised Codes 1935, defines extreme cruelty, so far as here applicable, as “* * * the infliction of grievous mental suffering upon the other by one party to the marriage, by a course of conduct towards or treatment of one party to the marriage by the other, existing and persisted in for a period of one (1) year before the commencement of the action for divorce, which justly and reasonably is of such a nature and character as so to destroy the peace of mind and happiness of the injured party, or entirely to defeat the proper and legitimate objects of marriage, or to render the continuance of the married relation between the parties perpetually unreasonable or intolerable to the injured party.”
■The parties intermarried at Missoula, Montana, on February 3, 1941. At that time plaintiff was 68 and defendant 54 years of age. This was plaintiff’s second and defendant’s third marriage. Each had children of previous marriages, but no issue resulted from this union.
Plaintiff was a man of considerable substance, being the owner of properties in Montana and elsewhere, including a lumber business at Cut Bank. Subsequent to their marriage the parties resided at Cut Bank, occupying a three-room apartment
for the first year or thereabouts. Thereafter they moved into a new six-room house, erected during that period.
We have read the record herein with the utmost care. Without here detailing the evidence on plaintiff’s behalf (consisting solely of plaintiff’s testimony) we conclude that it totally fails to support the findings hereinabove listed as findings 1, 4, 5, and 6 which, consequently, will not be permitted to stand. As to finding 1, plaintiff’s testimony suggests that the defendant, rather than nagging and scolding during the period alleged, was extremely uncommunicative.
We shall discuss the other findings, and the evidence respecting them, separately. First the findings that defendant repeatedly called plaintiff “a big liar,” which gave rise to quarrels in the home and thus disturbed his peace of mind and happiness. In this respect the plaintiff testified:
“Q. You allege in your complaint that she called you a-big liar. What about that? A. She called me a big liar a number of times. She repeatedly done that.
“Q. In connection with what? A. I don’t know as any one particular thing particularly. One thing, she always accused me of promising to give her the house. Well, of course, if she had lived with me like a good wife, the intention was, of course
“Mr. Hall: I object to this volunteer statement and move that it be stricken as it is not responsive to any question.
“The Court: That latter part is not responsive. It may be stricken.
“Q. What about her calling you a liar repeatedly ? A. Well, that came up on different occasions and different times, I cannot say just exactly what, but she knows that she done, that repeatedly.”
What plaintiff said in support of this allegation amounted to nothing more than a bald statement that defendant repeatedly called him a liar. How often and on what occasions this occurred he could not recollect. Nor did he state what prompted the accusations on any occasion, nor the apparent reason there
for, nor tlie provocation, or lack thereof, nor that the accusation was untrue. Even disregarding defendant’s denial of this accusation, plaintiff’s testimony is unconvincing, and certainly, of itself, entirely insufficient to establish extreme cruelty. The complaint alleges, and the finding declares, that defendant’s conduct in this respect, disturbed — not destroyed — his peace of mind and happiness.
With reference to the finding “that ever since the spring of 1941 the defendant has refused to sleep with plaintiff and persists in sleeping apart from him against his will and wishes,” the record discloses the following testimony by the plaintiff:
“Q. Now, you were — you had a bedroom in this apartment. Did she sleep with you, or not? A.- She did not.
‘ ‘ Q. Where did she sleep ? A. She slept in the front room on the couch.
‘ ‘ Q. Did you say anything to her in regard to that arrangement? A. Oh, I talked to her repeatedly and she said she couldn’t sleep with me because I snored.
“Q. And she refused to sleep with you? A. Yes, she did.
“Q. From that time down to the present time, as far as that is concerned? A. She did, unless we were away to Great Falls or Kalispell, when we just had one room.
“Q. And after you had finished this home and moved into it. How many bedrooms were in the home? A. There is two.
“Q. Did the defendant sleep here with you? A. No sir.
“Q. After you had moved into the new house? A. No, she didn’t; she wouldn’t.
“Q. She wouldn’t sleep with you? A. Yes.
“Q. Although you requested her to do so? A. Yes.
“Q. Where did she sleep? A. We had a room there that she slept in, and I slept in the other bedroom.
With reference to this aspect of the case, the defendant testified:
“Q. Now, there is some testimony on the part of Mr. Anderson with reference to your refusal to sleep with him in the
apartment. What is the fact about that, Mrs. Anderson? A. I never have yet refused to sleep with Mr. Anderson, never.
‘ ‘ Q. What was the reason, if it is a fact, that you slept apart from him? A. Yes.
“Q. What was the reason? A. Well, because he did snore and Mr. Anderson did have quite a bit of gas on his stomach; that made it quite uncomfortable. He would occupy the biggest part of the bed, so fhat we decided that one of us Avould sleep on the couch, so that I slept on the couch awhile, and then he slept on the couch.
“Q. And that was a matter of agreement .between you? A. Yes sir.
“Q. And not any refusal on your part to sleep with him? A. No sir, never.
“Q. And if at any time he made a request for you to sleep with him, did you refuse? A. Never refused Mr. Anderson.
“Q. Now, there were two bedrooms, as I understand, provided in the new home. A. Yes sir.
“Q. And when you moved out there to the new home what sleeping arrangements, were made between yon and Mr. Anderson? A. Well, we rejoiced to think that we were going to have such nice bedrooms.
“Q. Bach one was to have his or her own room? Y. Yes sir.
“Q. After you had moved in there, did you refuse to sleep with Mr. Anderson? A. No, I never refused to sleep with Mr. Anderson.
“Q. You simply continued some other arrangement? A. That is it, yes sir.”
It thus appears that except on occasions when they were away from home the parties slept apart practically from the time of their marriage. Plaintiff claims such arrangement Avas because of defendant’s refusal to sleep with him. Defendant asserts that the sleeping arrangements were by mutual agreement, and gave apparently valid reasons why such arrangement was desirable. It is significant that no claim is made by plaintiff that defendant ever refused marital relationship with him;
and it may be fairly inferred from defendant’s uneontradicted testimony that she at no time refused such.
Respondent, and apparently tbe trial court, attach considerable importance to evidence concerning defendant’s custom of locking her bedroom door at night. Plaintiff testified that “after dinner she would go into her room and either lock the door and turn on the radio, or she would get her hat on and run down town.” Defendant testified that she did lock the door to her bedroom when she went to bed at night, but never before that- time. She explained that because' prowlers had evidently entered the home on several occasions, she was nervous; that plaintiff had refused to report these occurrences to the police; that the lock or fastening on the back door was broken, which would permit access from the basement to the kitchen. She testified that she had never refused plaintiff access to her room after she had retired. This testimony was not disputed by plaintiff, and, standing undenied, appears to be a logical explanation of her action, although termed “ridiculous” by the trial judge in his opinion.
The plaintiff did not claim and the court did not find that defendant’s refusal to sleep with him destroyed his peace of mind and happiness, or. that such refusal defeated the proper and legitimate objects of marriage. We think that, giving full credence to plaintiff’s testimony, it does not, standing alone, establish extreme cruelty as defined by statute upon which plaintiff relies. No authority supporting a contrary view has been furnished by respondent or found by the court. Of course this circumstance must be considered with others shown by plaintiff in determining whether plaintiff substantially established the extreme cruelty relied on by plaintiff and found by the court.
During plaintiff’s direct examination, he was permitted to testify concerning certain difficulties between the parties arising out of business transactions. This was objected to on the ground “that there is no allegation in the complaint with reference to an interference by the defendant with the business, or any business transaction with the defendant, it being the cruelty
being contained in the three categories set forth in paragraph five which we are called upon to meet by our evidence.” The objection was overruled, and plaintiff testified, in substance, that he had quarrels with his wife over her refusal to sign certain papers; that in 1941 he asked her to sign an oil lease, which she refused to do until the elimination therefrom of certain provisions concerning her dower interest. Again in 1943 she refused to sign a deed to a 40 acre tract which plaintiff required in connection with the dissolution of a partnership. This was in August or September of 1943. Plaintiff testified on direct examination: “I asked her to sign it then, and she said she wouldn’t do it. I said I have to go on with my business. If she don’t sign it I have to file for a divorce.” The apparent implication of this testimony is that he was determined to have the deed executed, and intended to eliminate the necessity of his wife’s joining in its execution by divorcing her. It appears from his testimony that she also refused to join in a conveyance to certain real estate in North Dakota; that such refusal on her part made it “most unpleasant for me.” Shortly after defendant’s refusal to sign the deed first mentioned plaintiff moved from the family home and established living quarters in a room over his lumber yard, apparently in August, 1943. In this connection he testified:
‘ ‘ Q. Why was it that you left the home that you had provided for yourself and your wife? A. Well, because I had to have this here divorce. I didn’t want to live with her after the divorce was filed, or started.” With reference to his reason for leaving home, plaintiff on cross-examination testified:
“Q. And as a matter of fact the main reason you left home in August, 1943, was the refusal of Mrs. Anderson to sign papers? A. Yes, that was, and of course the unpleasantness.
‘ ‘ Q. Did I understand you to say that you told Mrs. Anderson that if she didn’t sign the paper you were going to sue her for a divorce? A. I told her I would have to do that, yes.
“Q. And it was immediately after that that you left the home? A. Yes. * * *
‘‘Q. So that there won’t be any question about it, Mr. Anderson, you told her sometime in early August, 1943, that if she didn’t sign the paper you were going to sue her for a divorce? A. Yes sir.
“Q. And when she didn’t sign the paper, or refused to sign it, you left home and filed an action for divorce, didn’t you? A. Quite shortly after. I went and seen my attorney and I think my attorney had to go away and stay away for awhile, but it was shortly afterward anyway.
“Q. And the thing that brought such a matter to a head was her refusal to sign this paper? A. Yes, mostly that.”
And on re-direct examination:.
‘ ‘ Q. And it was these other circumstances and her treatment of you that influenced you in bringing this action for divorce? A. Yes sir.
“Q. And it was not solely on the ground of her refusal to sign these deeds? A. That was the final trouble that we had.
“Q. That was the culmination of the other difficulties? A. Yes, the accumulation.”
Analysis of plaintiff’s testimony impels us to the conclusion that the principal reason for his leaving home was defendant’s refusal to sign the instruments; and further that such refusal was his real reason for instituting this action. This is fortified by the following testimony by defendant:
‘‘Q. What reason did he give for leaving? A. I wouldn’t sign the deed to the land.
‘ ‘ Q. That was the only reason ? A. That was the only reason he told me. He told me the marriage was only commercial anyway. He said he never loved me, he only married me for convenience.
‘‘Q. After the divorce action had been filed, did you have any conversation with Mr. Anderson as to his reasons for wanting it? A. Yes, he came back and asked for a blanket and some kettles to cook in, and I told him I thought I had given him all the blankets he had before he was married, so that I said, ‘Pete, why did you say those terrible things about me in your com
plaint?’ He said, ‘What did I say?’ I said, ‘You said I abused you.’ ‘Well’, he said, ‘what else could say? I didn’t know of anything else to say.’ ‘Well,’ I said, ‘you know you left, why did you leave?’ He said, ‘Because you wouldn’t sign the deed.’ I said, ‘What else could I do?’ He said, ‘You caused me mental worry.’ I said, ‘Why didn’t you put that in your complaint then ? ’
“Q. And he gave that as his reasons for filing the divorce action? A. Yes * # * he said, ‘I waited a whole week for you to come down and sign those papers, when you didn’t come, what else was there left for me to do? I had to go ahead.’
“Q. That is to file the divorce action? A. Yes sir.”
This evidence was not controverted by plaintiff.
Without determining whether evidence with respect to defendant’s refusal to sign these instruments should have been excluded because not alleged, we hold that it manifestly was no proof of extreme cruelty. Defendant was within her legal rights in such refusal to sign away her interest in the property involved. As is said in Hofman v. Hofman, 40 Ind. App. 476, 82 N. E. 477: “* * * So far as it relies on cruel treatment, the only issuable fact averred is that appellant refused to join with appellee in the execution of deeds for his real estate. The statute giving to a married woman an interest in her husband’s real estate, in the conveyance of which she has not joined, was intended for her benefit and her protection, and if, by standing upon her right under this law, she is guilty of a mai'ital offense against her husband that would entitle him to a divorce, it would be better that the law should be repealed. Such is not the case, however, and the marital relation is not to be cast aside upon any such trivial and insufficient ground.” See also Schlect v. Schlect, 99 Cal. App. 163, 277 Pac. 1065.
Considering plaintiff’s testimony alone, we think that it established at best incompatibility between the parties, or as the plaintiff put it, “unpleasantness.” We are convinced that such evidence is wholly insufficient to support the finding of the inflic
tion, by defendant upon plaintiff, of extreme cruelty as defined by statute and made a ground for divorce.
It is our view that the plaintiff failed to sustain the burden of proving the allegation of the infliction of extreme cruelty, which, of course, he must do before becoming entitled to a decree. To make our position clear, we think that, accepting plaintiff’s testimony as true, it does not, as a matter of law, establish extreme cruelty upon which his complaint is based. In Argenbright v. Argenbright, 110 Mont. 379, 101 Pac. (2d) 62, 64, this court said: “While our statute provides that such acts as fall within the definition of extreme cruelty are grounds for divorce if they are justly and reasonably of such a nature and character as so to destroy the peace of mind and happiness of the injured party, or entirely to defeat the purposes and legitimate objects of marriage, or to render the continuance of the married relation between the parties perpetually unreasonable or intolerable to the injured party, nevertheless the burden is on the plaintiff to show that the effect of such acts creates the condition which the statute condemns, which we believe she has failed to do in this case. The evidence, weak as it is, shows little more than incompatibility, which is not a ground for divorce in Montana in the absence of a showing of the result specified in the statute.”
While this court will not disturb findings of the trial court where supported and justified by substantial evidence, it is clearly our duty to set aside findings not so supported or justified. Putnam v. Putnam, 86 Mont. 135, 282 Pac. 855; Moulton v. Irish, 67 Mont. 504, 218 Pac. 1053. We have not undertaken to weigh the evidence, which is the province of the trial court; we hold that, giving the evidence its full effect, it does not sustain the material allegations of the complaint or the finding of the trial court. The trial court concludes, as appears from the opinion, that defendant’s principal interest in the marriage “was based upon the financial consideration which she thought would flow therefrom.” Whether this conclusion is justified is immaterial, since the only question involved
is whether the plaintiff produced evidence sufficient to prove the extreme cruelty alleged. We hold that he did not. From a careful study of the record we are convinced that the administration of substantial justice requires a reversal of the judgment herein. Since the plaintiff has died pending appeal, further proceedings in the matter are impracticable.
The judgment is reversed and the cause remanded with directions to dismiss the complaint and vacate the judgment.
Mr. Chief Justice Johnson and Associate Justices Adair and Angstman concur.