Whinnery v. Whinnery

BURNETT, J.

The action was for divorce on the grounds of intemperance and cruelty. The judgment was in favor of plaintiff, awarding her' a divorce on the ground of cruel treatment. Findings were waived. The court recited in its judgment that the “interlocutory decree is hereby made on account of defendant’s extreme cruelty toward the said plaintiff.” Certain property was also adjudged to be the separate property of plaintiff and a portion of the community property was awarded to her and the balance to defendant.

The points made on the appeal are that the evidence is insufficient to support the judgment, that there was condonation on the part of plaintiff and that the court erred in determining that said property was the separate property of plaintiff.

As to the evidence, there can be no doubt as to its sufficiency to support the conclusion of the trial court. The plaintiff testified: “I am not living with defendant at this time. We have been separated a year. The reason of the separation was his intemperance and his cruelty. He was intemperate, drinking to excess. He started to drink almost immediately after we were married and continued to drink while we were living together. He was drunk frequently. The last year that he lived at home he was drunk almost continuously. He first commenced to be cruel to me about four or

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five years ago. He tried to choke me on one occasion. He repeatedly told me that I was not better than a prostitute; also told me that I had not a dollar when he married me, every cent he had, everything he was possessed of, was his, I had nothing. On one occasion he said that I occupied a different bed because I had all the men there that I wanted, the butcher boys and grocer boys. He would stand over me in a threatening attitude and say those things about the butcher boys and grocer boys. That was a year ago, in February or March, a month or two preceding before I insisted on his leaving home. He would make those statements almost daily. During the last six months that he was home we quarreled almost weekly over money matters.”

The daughter, Rose Whinnery, testified that her father “was very quarrelsome and abusive, to my mother especially. When he had been drinking, when he was at home during the last year he was quarreling with mother almost every day. I remember when my father tried to choke my mother. I must have come into the room while they were quarreling. My father had his hands around my mother’s neck. I don’t remember that he said anything. My mother was screaming. My father had been drinking; his face was flushed; he looked angry.”