Opinion
To show intolerable cruelty, there must be not only proof of acts of cruelty but proof that in their cumulative effect they are intolerable in the sense of rendering the continuance of the marital relation unbearable. Since the finding could not be corrected to include the ultimate fact of intolerable cruelty, the judgment denying a divorce could not be successfully attacked.
Argued October 8, 1957
Decided October 29, 1957
Action for a divorce, brought to the Superior Court in New Haven County, where the defendant filed a cross complaint and the issues were tried to the court, Conway, J.; judgment for the defendant on the complaint and for the plaintiff on the cross complaint, and appeal by the plaintiff. No error.
Joseph Weiner, with whom, on the brief, was Lester Aaronson, for the appellant (plaintiff).
Arnold Bloomfield, pro se, the appellee (defendant).
The plaintiff brought this action to obtain a divorce on the ground of intolerable cruelty and has appealed from a judgment for the defendant. The finding, with such minor corrections as are warranted, supports the determination that the conduct of the defendant was cruel but not intolerable.
"Intolerable cruelty" as used in 7327 of the General Statutes has a subjective as well as an objective meaning. There must be not only proof of acts of cruelty on the part of the defendant but also proof that in their cumulative effect upon the plaintiff they are intolerable in the sense of rendering the continuance of the marital relation unbearable. Goddard v. Goddard, 143 Conn. 727, 118 A.2d 906; Gowdy v. Gowdy, 120 Conn. 508, 510, 181 A. 462.
The burden was upon the plaintiff to prove intolerable cruelty. Since the finding cannot be corrected to include the ultimate fact of intolerable cruelty, the judgment cannot successfully be attacked. Augur v. Augur, 133 Conn. 211, 213, 49 A.2d 665.