Thorem v. Thorem

*154 HILTON, Justice. Action for a divorce on the ground of cruel and inhuman treatment. At the close of the evidence judgment was ordered dismissing plaintiff’s complaint. The appeal was taken from an order denying a motion for a new trial. Plaintiff and defendant were married December 29, 1920. Plaintiff was 38 years of age, defendant 40 years, at the time the action was commenced in January, 1932. There was no issue of the marriage. The court found as a fact: “That during the married life of the parties considerable trouble arose between them, but that one was as much responsible therefor as the other.” The evidence amply supported that finding. In such a situation a divorce should not be granted. Reibeling v. Reibeling, 85 Minn. 383, 88 N. W. 1103; Colahan v. Colahan, 88 Minn. 94, 92 N. W. 1130; Jokela v. Jokela, 111 Minn. 403, 127 N. W. 391. 2. The court at the conclusion of the testimony said: “It is the law of course in divorce cases that those who come in seeking relief must come in with clean hands. The divorce court is a court of equity. Where the blame is as much on the one side as the other, and as I view this case that is about the situation here, no relief can be granted. The court will draw findings denying the plaintiff relief and dismissing the action.” Counsel for the plaintiff attached no importance to that statement at the trial. They said nothing. They mention it for the first time on appeal and claim the trial court viewed the testimony from a wrong viewpoint. Their final motion was in the alternative for an amendment of the findings of fact and conclusions of law and for judgment, or, if such relief be denied, then that a new trial be granted “on the ground that the findings of fact, conclusions of law, order for judgment and the decision of the court are not justified by the evidence and are contrary to law.” They never claimed anything but that the evidence did not sustain the findings. *155 The rule is applied in appropriate situations that if the court is proceeding upon a wrong theory of the law, as for instance in Berg v. Penttila, 173 Minn. 512, 217 N. W. 935, "where it was thought that the trial court treated the defendant’s insistence upon his constitutional right against self-incrimination as tending to show guilt; or as in Maldaner v. Smith, 102 Wis. 30, 78 N. W. 140, where the court applied the wrong presumption as to the effect of the interlineation in a note; or as in Boardman v. Lorentzen, 155 Wis. 566, 145 N. W. 750, 52 L.R.A.(N.g.) 476, where in determining a fact there was a mistake as to where rested the burden of proof; or when the trial court refused to exercise its discretion upon the ground that it had none, Avhen in fact it had, as in Ricker v. J. L. Owens Mfg. Co. 151 Minn. 314, 186 N. W. 702; Nornborg v. Larson, 69 Minn. 344, 72 N. W. 564; and State ex rel. Ray v. District Court, 68 Minn. 147, 70 N. W. 1088, there may be relief if the record is properly protected. But these cases are far from the one before us. A very careful examination of the evidence seems to make it quite impossible for this plaintiff, after her conduct, though not deemed criminal, but surely improper (perhaps even disgraceful to herself) and humiliating to her husband, to be held entitled to a divorce. A finding for her would be surprising; and the remarks of the court should not be technically criticized. Affirmed.