Gilpin v. Gilpin

Mr. Justice Elliott delivered the opinion of the court. The defendant below having steadfastly resisted the granting of the divorce as well as the decree depriving her of the custody of the children, the first question necessary to be considered is whether or not there was error occurring at the trial which might have affected the verdict of the jury. Plaintiff’s counsel strenuously insist that this court should not disturb the verdict in a case like this; that the jury, having an opportunity to see and hear the living witnesses, are better able than the appellate court to judge of the truth of matters of fact, especially when there are a large number of witnesses and much conflict in the testimony. Whether the verdict in divorce cases is to he considered 'as a common-law verdict or advisory merely, as in cases of equitable cognizance, we need not determine at this time. Chapter 32 of the General Statutes provides, among other things, that “the * * * court, sitting as a court of chancery, shall have jurisdiction in all cases of divorce and alimony by this chapter allowed; and the like process, practice and proceedings shall be had as are usually had in other cases in chancery, except as is hereafter provided; * * *” and that, “ where the defendant shall appear and deny the charges in the complainant’s bill alleged, the same shall be tried by a jury.” Whatever may be the precise effect of a verdict in divorce cases, and whatever power the trial judge may possess over the same, we are clearly of the opinion that when — 509 — an issue is framed and submitted to a jury wherein one party charges and the other denies the commission of a matrimonial offense, the verdict returned thereon is entitled to great weight. Indeed, we are not prepared to say that under the statute it should not be held as conclusive as a common-law verdict upon the trial court as well as upon the appellate court. But it certainly is not entitled to greater consideration than verdicts in strictly common-law actions. Such verdicts, to be binding upon the courts, must be sustained by evidence and instructions free from substantial error. If competent evidence has been offered and excluded, if incompetent evidence has been admitted, or if the jury have been improperly instructed, and the party aggrieved by such rulings of the court has duly objected and excepted thereto, so that it clearly appears by the record that substantial error has been committed, the verdict should be set aside. The defendant having resisted the granting of the divorce to her husband, as well as the taking of her infant children from her care and custody, is entitled to have the rules of law by which these results have been accomplished subjected to the same critical review as in controversies concerning lands and tenements, goods and chattels or other valuable rights. Certain material charges against defendant in plaintiff’s complaint were to the effect that she had entered into a conspiracy whereby plaintiff was called out of his house at night, assaulted, and knocked down by defendant’s son Sidney, and that defendant was present, aiding and abetting her son in that transaction. Plaintiff had testified fully upon this subject. He had sworn that, upon a sign from defendant, Sidney had struck him, and felled him to. his knees, and that defendant had then called out: “Run, Sidney; he is armed, and will kill you.” The defendant, in her answer, had specifically denied these charges; and when she was called as a wit — 510 — ness, after giving certain testimony relative thereto, she was asked by her counsel, “Did you say, cRun, Sidney; he is armed?’” Plaintiff’s counsel objected to this question, and, the objection being sustained by the court, an exception was duly reserved by defendant’s counsel. The record does not disclose upon what ground the objection was based, nor upon what ground it was sustained, and we must confess our inability to perceive any good reason for the ruling. The subject-matter of the testimony was most material. The plaintiff had given testimony in chief in regard to the matter. The exclamation of the defendant, if made, was part of the res gestae, and tended to show that she was acting in concert with her son. . To deny her the right to give her testimony in reference thereto in the amplest manner was certainly contrary to the rules of evidence, and may have greatly prejudiced her cause in the minds of the jury. Again, plaintiff had charged in his complaint that defendant had sought to poison the minds of his children against him, to make them hate, despise and avoid him. In support of this allegation the plaintiff was permitted to give in evidence, against the objection and exception of the defendant, a conversation between the witness Elizabeth Owens, and the child Willie, when the child was about eight or nine years old, on an occasion when defendant was absent from her home, when plaintiff was in another part of the house, and while the witness was putting the child to bed. The witness testified to the effect that the child said his “papa was a thief, and everybody belonging to him, and his mamma could put them in the penitentiary; that his,mamma said so.” The record does not disclose upon what ground this evidence was offered or received, and we are unable to recall any rule, or exception to any rule of evidence, which would allow the admission of such hearsay testimony. In its very nature, such testimony was calculated to be most — 511 — prejudicial to the defendant’s cause; and since it was not legal evidence, its admission to the jury must he held to be manifest error. Counsel for plaintiff in their printed argument do not attempt to justify or excuse the trial court for the exclusion of the testimony in the one instance, nor for the admission of it in the other, as above set forth. The only defense attempted in this court is that the assignments of error based thereon “ are not entitled to any consideration, because they are not specific.” Without entering into a discussion of the practice of this court in respect to assignments of error, we are satisfied that the rules are liberal enough to enable us to consider and act upon the errors under consideration. In addition to the assignment of errors in the common form, counsel for appellant argued these objections in their first brief, and the printed abstract contains an index to the testimony of each witness, so that neither court nor counsel could have any difficulty in finding or understanding the matters assigned for error. The laws of the state specify many causes for which divorces are allowed. In the opinion of many good people the family household may be thereby too easily broken up and destroyed. The institution of marriage lies at the foundation of our civilization. It is the safeguard of education and true religion, the promoter of public and private morals, and the conservator of social order. Pub-, lie policy favors the continuance of the marriage relation, and the courts should not lend their influence to dissolve the same except in obedience to strict law. It does not follow because a married person has a legal ground of divorce that he or she is bound to assert the same in the courts, either as plaintiff, or as defendant by way of cross-complaint. The law favors the condo-nation of matrimonial offenses. Acting upon these principles, this court has adopted the equitable doctrine that a destitute wife, though having a statutory ground for — 512 — divorce, may nevertheless waive her right thereto and maintain a suit for alimony under certain circumstances. Daniels v. Daniels, 9 Colo. 117, and cases there cited. We express no opinion upon the merits of this unfortunate controversy. What we have said has been in maintenance of defendant’s legal right to have the law declared and enforced impartially, to the end that she should not be divorced from her husband, nor deprived of the society of her children, unless the law thus declared, and the evidence thus admitted and considered, should justify such results. We are aware that the ready question of modern public sentiment will be: “ Why does not defendant allow plaintiff- a divorce if his conduct has been as cruel and distasteful to her and her family as she herself alleges? ” It is not necessary for us to answer this question. Still, it is not difficult to surmise reasons satisfactory to her, and perhaps to others. It is no concern of ours whether such reasons please the multitude or not; it is sufficient for the ear of justice that she is entitled to the enforcement of the law for the protection of herself and children in this regard. The fact that so many parties in divorce proceedings contend for nothing except money is no reason why the law should not be administered impartially when invoked by the few who do not regard lightly the sundering of the marriage tie or the loss of the society of thei.r children. The defendant, as appears from her professed religious views, has conscientious scruples against the granting of divorces on many of the grounds allowed by our statute. She is now over fifty years of age. She is the mother of two families of children. Gov. Gilpin, the plaintiff, now over seventy years of age, is the father of one of these families. He has long enjoyed large official honors, both civil and military. The defendant is also most respectably connected. Fortunately, both parties are possessed of a reasonable competency to meet the ordinary wants — 513 — of life in the high social position in which they live. Their condition and circumstances considered, even if some of their grievances are well founded, it should not be a matter of wonder that either of them should desire to avoid the unpleasant notoriety of being divorced. It is said that the principal questions now remaining to be settled in this case relate to alimony and the custody of the children. Counsel have devoted a large share of their arguments to these questions, and it is suggested, that their determination does not necessarily depend upon the result of the divorce issue. Nevertheless, plaintiff’s counsel in their brief claim great advantage for their client in respect to alimony and the custody" of the children on account of the verdict being in his favor; and we cannot ignore the fact that the verdict of the jury has a most important and often a controlling influence in respect to the future custody of children in divorce cases, especially when they have arrived at the ages of twelve and fourteen years, as in this case. The verdict in this case upon the issues as formed and tried tends directly to show the conduct of defendant to have been unmotherly as well as unwifelike, and thus necessarily does affect her claim to the custody of the children; hence she is entitled to insist that it shall be set aside, unless it was fairly obtained. If we were to 'shut our eyes to the errors occurring at the trial, and allow the decree of divorce to stand, to save trouble, expense and delay, we should be conscious of thus placing the defendant at a great disadvantage in respect to her claim to the custody of the children by the maintenance of a verdict obtained under erroneous rulings. As a matter of .law, she is entitled to have her rights passed upon without being thus "unjustly prejudiced. We are constrained, therefore, to say that the issue of divorce must be decided upon a trial free from substantial error, or abandoned altogether, before the future custody and control of the children can be properly provided for with due regard to the legal — 514 — rights and parental feelings of both father and mother. Until the divorce issue is settled the trial court may make such temporary orders in reference to the custody and maintenance of the children and alimony pendente lite as may be reasonable and proper, the circumstances of the parties considered. If there is any reason why the arrangement as to the temporary care and custody of the children as already decreed should not be continued the whole matter is subject to any change or modification, under the direction and reasonable discretion of the trial court. The views of this court upon questions of this kind have been expressed in several cases. Cowan v. Cowan, 10 Colo. 540; Luthe v. Luthe, 12 Colo. 421. As the record before us does not show any exceptions to the instructions given by the trial court to the jury, the errors assigned thereon cannot be made ground of reversal. But as the case may be tried again, we deem it proper to say that the instructions preserved in this record, if excepted to, would not meet the approval of this court. One instruction leaves out of view the provocation which may have been given for the supposed misconduct; another leaves out of consideration the probability of condonation; and still another calls special attention to the conduct and demeanor of defendant, as asserted by plaintiff and his witnesses. We need not notice the instructions further, except to say that if, in a trial for divorce, it is necessary to investigate and expose in detail the events of thirteen years of domestic life, great care must be exercised in declaring the law applicable to such a controversy, else a very unsafe legal standard of matrimonial conduct might be established. Plaintiff’s objection to considering defendant’s bill of exceptions for the purpose of showing errors occurring at the trial of the divorce issue is not well taken. It is true plaintiff’s bill of exceptions shows that plaintiff objected to the signing and sealing of defendant’s bill because the same was not tendered in time; but it does not — 515 — show that the objection thus made was true as a matter of fact, and, the trial judge having overruled the objection and signed defendant’s bill without restrictions, we must presume that he did so in pursuance of authority, and that the defendant’s bill of exceptions is entitled to be considered for all purposes as to the matters embraced therein, as well upon one issue as the other. The judgment of the superior court is reversed and the cause remanded.