Otterbacher v. Otterbacher

McWilliams, J., delivered the opinion of the Court. This is another skirmish in the war between men and women. The protagonists became husband and wife in 1944 and their marriage endured until July of 1964 when the wife sued for a divorce a mensa et thoro. She has appealed from the decree dismissing her bill of complaint.

The incident which the wife claims justified her leaving the husband occurred on 18 June 1964. She had come home from work about 4 P. M. and, since it had been a hot day, she made a “Tom Collins” for herself and her mother, who was visiting them. When the husband arrived he busied himself with some back issues of the Wall Street Journal. He had been wanting to sell their bonds so he could buy some shares of Comsat but she would not agree.

The wife and her mother began to “needle” ²⁶² him about a new vacuum cleaner. This was an explosive subject because it seems she had bought a cheap one without consulting him. Even so, he said, whenever she complained about it, which was often, he found that it was full of dirt, which she was “too lazy” to take out. The “needling” continued and eventually he reproached her, obscenely she says, for nagging him in the presence of others.

Whereupon she hurled the “Tom Collins” glass at him with force and accuracy sufficient to shed a quantity of blood. After he had picked the pieces of broken glass out of his head and wiped off his face he came back into the room only to be hit by a towel. Intending to, take her into the back room “to tell her once again for the last time she was never going to throw another dish at me” he had to grab her by the hair to keep her from tearing his clothes. She said “he grabbed me by the hair and drug me about six feet down the hall.” She “decided, at that time it was best to part.” (Emphasis supplied.) The wife complains of another occasion, about six months earlier, when, according to her, he knocked her off of the older daughter’s bed, sat on her and pulled her hair.

He says that on the way home after visiting a neighbor she taunted him about the children’s lack of affection for him. When they arrived home he went upstairs to talk to the oldest daughter. The wife came into the room, sat on the bed and started to talk. When he reached over to put his hand over her mouth she bit his thumb-.

In the ensuing scuffle she fell to the floor and he sat astride her to restrain her. He said his thumb was very nearly bitten off. The transcript relates in melancholy detail other trivia of their last months together, little of which is interesting and none of which has any special relevance to the question before us. The case was tried before Judge Powers who observed the appearance and demeanor of the witnesses and their manner of testifying.

In his opinion he said: “While, certainly, no one would approve of the conduct of the husband, taking the testimony most favorable to him of incidents which occurred and, even accepting completely the testimony of the plaintiff, his conduct as a husband and father was not admirable. ²⁶³ But in at least one of the