Palmer v. Palmer

281 N.W.2d 263, 1979 S.D. LEXIS 257

Opinions

WOLLMAN, Chief Justice

(on reassignment).

This is an appeal from a decree of divorce in favor of plaintiff husband that terminated a twenty-five year marriage between the parties. Defendant wife appeals, arguing that plaintiff did not establish grounds for granting the decree.¹ We reverse.

The parties were married on December 23, 1950. Three children were born to the marriage, all of whom are now adults.

In 1973, plaintiff admitted to his wife that he had been seeing his secretary but that the relationship “was all over now.” Upon plaintiff’s return from a trip to Reno, Nevada, in 1974, however, Mrs. Palmer discovered a receipt for a diamond ring that plaintiff had purchased for his secretary. Plaintiff moved out of the home in June of 1975, and the parties have been separated since that time. Plaintiff acknowledged at trial that he was still carrying on his relationship with the other woman.

Plaintiff alleged in his complaint that his wife had inflicted grievous mental suffering upon him. He testified that she was suspicious of his activities away from the home and that she had sought to confirm these suspicions by periodically checking on his whereabouts, by observing the mileage on his car, and by checking the contents of his pockets. Plaintiff’s only evidence of the effect of his wife’s behavior on him was his unsupported assertion that stresses in the marriage had caused him to suffer backaches.²

SDCL 25-4-2 includes among the grounds for divorce extreme cruelty, which is defined by SDCL 25-4-4 as “the infliction of grievous bodily injury or grievous mental suffering upon the other, by one party to the marriage.”

The evidence of extreme cruelty in this ease does not even approach that found in Pochop v. Pochop, 89 S.D. 466, 233 N.W.2d 806 (1975), a decision that may well represent the outer limits of liberality in sustaining a finding of extreme cruelty and which should not be read as abrogating the requirement that there be record evidence of the grounds for divorce. We conclude that the trial court erred in determining that Mrs. Palmer had been guilty of extreme cruelty toward plaintiff. Suspicious she may have been, but plaintiff can hardly fault her for that, given his admissions and her discoveries.³

The judgment is reversed.

DUNN and MORGAN, JJ., concur. HENDERSON and FOSHEIM, JJ., dissent.

Footnotes

1

. Defendant wife also appeals from the property settlement, support, and alimony judgment entered by the trial court. In view of our disposition of the divorce decree upon which the judgment is based, we do not discuss the merits of this contention.

2

. That this marriage, like so many others, was not entirely free from discord is illustrated by plaintiffs testimony that in 1972 Mrs. Palmer had suggested counseling and that they had spoken to marriage counselors on two occasions. Mrs. Palmer testified that she and plaintiff had spoken with a marriage counselor on one occasion, apparently in the summer of 1972, but that plaintiff had refused to go back for further counseling.

3

. The transcript in this case is rather typical of contested divorce cases. The husband’s extracurricular activities are suspect; the wife is a jealous nag and impossible to live with. The only clear, tangible, and undisputed evidence that sets this case apart from the typical case is the fact of plaintiffs purchase of a diamond ring for his girl friend. This he could not deny. When confronted with the proof of his misconduct, he responds by attempting to ascribe his actions to his wife’s jealous conduct over the years. The fact remains that plaintiff did live with his wife for a quarter of a century, including a period in 1973 during which, according to plaintiffs testimony, the relationship between the parties was “very good,” and now seeks a divorce based upon her jealous rages after her suspicions were confirmed by undisputed evidence. This opinion should not be read as a judicial revival of the statutorily repealed defense of recrimination. Rather, we view the evidence in the light of the full context of the relationship between the parties and not in the narrow light of isolated incidents, at least one of which dates back nearly a score of years.