Davey v. Davey

Sobeloff, C. J., delivered the opinion of the Court. After divorce and remarriage, Capt. Ersal D. Davey and Ethel Margaret Davey soon found themselves again in the divorce court to which both resorted for relief from their marital grievances. The wife claimed alimony, alleging that her husband had become so lax in his personal habits as to force her in the interest of her health and self-respect to discontinue sharing his bed.

The husband filed a cross-complaint for divorce, alleging that the wife had abandoned and deserted bim by refusing him marital privileges although she continued to live under his roof. From a decree dismissing her bill and granting him a divorce a vinculo matrimonii she appeals. ⁴³⁰ The record is silent as to the date of their first marriage, but they have a married daughter who appeared as a witness in the case. They were divorced in 1939; it does not appear who was granted the divorce or why. The remarriage was in 1945.

About the following year the husband, a veteran of both world wars, was retired on pension as a captain in the United States Marine Corps, after more than thirty years’ service. He is now employed as a watchman and is approximately sixty years of age; the wife’s age is not disclosed in the record. The remarriage ran into difficulties, according to the wife, in the summer of 1947 when the husband became neglectful of his personal cleanliness. He bathed infrequently, and on one occasion abstained from bathing for three weeks.

According to the wife’s sister, who lived with the parties for a time, the Captain did not bathe for six weeks in the summer of 1952. This neglect proved all the more offensive to the wife as he suffered from hemorrhoids which soiled his bed and underwear. He refused to change his undergarments for weeks. Moreover, having been gassed in World War I, he suffered from a condition which caused him to cought and spit.

He kept an open spit can at or near his bed which was permitted to remain uncleaned for long periods and gave forth a bad odor. The wife’s testimony as to her husband’s conduct is corroborated by their daughter, by the wife’s sisters, and by another woman. Although the husband testified fully to other matters he failed to utter a single word in denial of their testimony as to his alleged unclean-lines. In 1948 the husband underwent surgery for his hemmorhoids, but his refusal to bathe except at long intervals persisted to the time of trial.

His failure to deny this makes unavoidable the acceptance of the testimony of the wife and her witnesses as to Capt. Davey’s obnoxious habits. At the argument here his counsel offered to explain that Capt. Davey’s physical condition made bathing painful.

This suggestion is dubious even if it is to be treated as testimony. The ailment is not un ⁴³¹ common and it does not ordinarily cause the victim to lapse into extreme and fixed habits of filthiness; nor would his physical condition account for his persistent shunning of the bath after his operation in 1948, or his unwillingness to change underclothes at reasonable intervals even before the operation. When the wife left her husband’s bed is not entirely clear. Various dates from the summer of 1947 to the fall of 1948 are given.

She testified that the conditions complained of continued to the time of the trial, and that she could not longer tolerate sleeping in her husband’s bed without injury to her health and self-respect. The daughter testified that her father’s habits made her mother “nervous” but there was no medical testimony to this effect. The husband attributed her cessation of cohabitation to quarrels over money. Her own version