Martha N. JACKSON, Defendant Below, Appellant,
Leighton JACKSON, Plaintiff Below, Appellee.
Thomas Herlihy, Jr., Wilmington, for appellant.
George L. Sands, Wilmington, for appellee, Carl W. Mortenson, Wilmington, of counsel.
SOUTHERLAND, C. J., and WOLCOTT and BRAMHALL, JJ., sitting.
This is an appeal from a judgment of the Superior Court granting a divorce to a husband on the ground of extreme cruelty. From this judgment the wife appeals.
The appeal presents one question only for our consideration. It is stated in the brief of the wife in the following language:
[54 Del. 273] 'Did the evidence adduced by the appellee [husband] entitle him to a divorce on the basis of extreme cruelty within the meaning of these terms as they are set forth in 13 Del.C. § 1522(4)?'
The language of 13 Del.C. § 1522(4) is as follows:
'Extreme cruelty, on the part of either husband or wife, such as to endanger the life or health of the other
party or to render cohabitation unsafe.'
At the opening of oral argument counsel for the husband presented a motion to dismiss the appeal on the ground that the record brought up by the wife was not complete since it did not include testimony of all the witnesses. Actually, only part of the testimony has been transcribed. It was therefore impossible to include all the testimony, not only in the appendices but in the record. The basis of the husband's motion is that since the question presented requires consideration of all of the evidence, the absence in the record of a major part of the testimony makes the question impossible of decision.
However, the motion to dismiss was presented only after the husband had filed his brief directed to the merits of the appeal. In that brief certain factual statements were made as to the purport of the omitted testimony. We do not understand counsel for the wife to take exception to these factual statements but to concede that the absent testimony supports the factual statements made in the husband's behalf. Under the circumstances, therefore, we will assume that the record supports the factual statements contained in both the wife's and the husband's briefs, and will decide this appeal on the merits. We take this course for the reason that the husband's motion should have been filed in advance of briefing on the merits. We do not wish to be understood, however, as approving a practice in future appeals of forcing the Court to rely upon factual statements in the briefs without the [54 Del. 274] means to verify them by independent examination of the record.
Primarily, the question to be decided is one of fact. It is necessary, therefore, to recite the facts of this controversy. In so doing, we include the factual statements in the husband's brief.
These parties were married on August 26, 1950, it being the second marriage for each. The husband was a widower, while the wife's first marriage had ended in divorce. The husband had two minor daughters by his first marriage who lived with these parties after their marriage.
The husband is a graduate chemist and holds a responsible position with a local company. He is sincerely religious and of a mild and even temper. He is active in civic affairs, does not swear, is a member of the Methodist Church, teaches Sunday School, and has for two three-year terms been a member of the governing body of his church.
The wife is a high school graduate, is not a sincerely religious person, is ill-tempered, has little or no respect for her ...