
    Hoppes v. Hoppes.
    (No. 23389
    Decided January 18, 1964.)
    
      Mr. Edmond 8. Woodmansee, for plaintiff.
    
      Mr. Victor F. Schmidt and Mr. Rollo M. Marchant, for defendant.
    
      
       Affirmed by Court of Appeals (2-10-65).
    
   CoeemaN, J.

The hearing on the divorce petition of Lola B. Hoppes against Wendell N. Hoppes was held on October 14, 1963, with Mr. Edmond S. Woodmansee appearing in behalf of the plaintiff and Mr. Victor F. Schmidt and Mr. Bollo M. Mar-chant appearing in behalf of the defendant.

The court, at the conclusion of the hearing, took the matter under advisement and in the meanwhile was requested by the counsel for defendant to have a further hearing to argue the question of support and alimony. This hearing was held on November 1, 1963 and Mr. Woodmansee and Mr. Schmidt appeared with their respective clients. Subsequent to the latter hearing, Mr. Victor Schmidt, counsel for defendant, requested a separate finding of law and fact to be prepared by this court.

The plaintiff’s petition charged the defendant with extreme cruelty which is a ground for divorce in this state under Section 3105.01, Revised Code.

The plaintiff testified to the following facts substantiating her grounds of extreme cruelty:

1. That the defendant spent “all his spare time” in the home reading Jehovah’s Witnesses’ literature and lecturing to the plaintiff and their children as to its merits.

2. That the children would have to go to their rooms because they couldn’t concentrate upon their school studies while defendant would read and lecture to them and their mother.

3. That the defendant would leave company who were visiting in the home to attend his church meetings.

4. That defendant, many times, called plaintiff, and anyone not a member of his church, hypocrites.

5. That even when she asked her husband to refrain from reading and lecturing to the plaintiff he would continue anyway.

6. That because of the persistence of the actions of her husband she became very nervous and upset and she maintained that it “made her life unbearable” and that “he ceased to be a companion” to her.

7. That his actions brought about by his beliefs affected their social life so that their friends and family didn’t “come around very often.”

8. That the husband’s teaching to the children Jehovah’s Witnesses’ beliefs regarding not voting and not saluting the flag created dissention between him and his wife.

9. That defendant’s father ordered him out of his home because of defendant’s stressing his beliefs pertaining to his religion.

10. That the defendant tried to force his religion on plaintiff and the children.

11. That the defendant told the plaintiff if he conld come back he would give her and the children one night a week or one Sunday a month, otherwise the rest of his spare time was to be used in the work of Jehovah’s Witnesses.

In substantiating the testimony of the plaintiff, the defendant testified that he “did spend a lot of them (spare moments) reading” Jehovah’s Witnesses’ literature; that he talked to her about the religion until they separated, even though she became “more critical” of it; that he attempted to give a brief sermon to plaintiff’s sister and her husband and plaintiff’s sister left the room and didn’t want to hear it.

Mrs. Julia N. Wilson, sister of the plaintiff, testified that when she and her husband visited the plaintiff and defendant in their home, the defendant would lecture and read to them Jehovah’s Witnesses’ material; that when he came to call on them in their home at Columbus, that she told him to leave and not come back, “if that’s all he could talk about”; that he left and has not come back since; that even on the telephone, long distance, he started preaching to her; that as a consequence, her sister, the plaintiff, was sad, upset and on occasion would cry because her husband would lecture to her all the time; and that some of the Wednesday nights that her husband would spend in conference with a Jehovah’s Witnesses’ preacher in their home, she would go to her sister’s to get away from them.

Mrs. Winifred Dellinger, sister of the defendant, testified that her brother had talked to her three or four times about Jehovah’s Witnesses since the beginning of 1963 to the present date; that he would be reading Jehovah’s Witnesses’ literature when she, his sister, visited in the home; that she and her husband told him that they would not accept his religion and that defendant was aggravated about it a couple of times; and that the plaintiff was unhappier and more nervous and upset because of his actions.

S. W. Hoppes, father of the defendant, testified that when his son and the plaintiff were separated, the son, for a short time, made his home with his father, but that the father ordered his son from his home because “he didn’t want his home to be Jehovah’s Witnesses’ Headquarters”; that the defendant talked to him about Jehovah’s Witnesses’ beliefs; and that the plaintiff came to Ms home crying and stayed there all one day because of the trouble in their home.

Mr. Wilbur Hoppes testified that his brother, the defendant, was engrossed in Jehovah’s Wtinesses to the extent that it was “number one before family or anything else”; that his brother offered literature to him and he refused it; and that when questioned about Mrs. Hoppes’ nervousness, Mr. Wilbur Hoppes said she was “a little edgy” the last few months.

Mr. Anthony Belegante, a witness for the defendant and a Special Representative of the Watchtower Society, Circuit Supervisor, when questioned as to how far a mate should go in trying to win his spouse to his belief in Jehovah’s Witnesses, testified that by continually talking to people who were vehemently opposed to their beliefs, they eventually “wear them down to the point where they would appreciate the things that were being spoken of.”

For the above reasons, the court thus finds sufficient evidence to substantiate plaintiff’s grounds for extreme cruelty and hereby grants to the plaintiff a divorce.

This court is quite aware that a difference in a religious faith of a spouse does not constitute a ground for divorce; however, on the other hand, in Krauss v. Krauss, 163 La. 218, 111 So. 683, 58 A. L. R. 457, the court held:

“However, a religious conviction may induce a spouse to do things that would ordinarily constitute a ground for a divorce or separation; and in such a case, the courts will be concerned primarily with the actions themselves and not with the motives behind them. ’ ’

Also, in the case of Mertens v. Mertens, 38 Wash. 2d 55, 227 P. 2d 724, the court held:

“On the other hand, where a wife’s conduct toward her husband, motivated by great religious zeal, constitutes a ground for divorce, she is not insulated from guilt by the guarantee of religious liberty in the First Amendment to the Constitution of the United States nor by the provisions of the Washington Constitution guaranteeing absolute freedom of conscience in all matters of religious sentiment, belief, and worship.”
“A case of cruelty and personal indignities was made out where it was shown that a wife, possessed of great religions zeal, limited the nse of the radio in the home except for religions programs; that she criticized the religions denomination of which the hnsband’s family were members, calling them hypocrites and telling them that they were “going to the devil” unless they “turned to her church”; that she alienated the affections of the child of the parties; and that she denied the husband conjugal rights and created an atmosphere in the home in which neither his friends nor his family felt welcome and which became so unbearable that he could not continue to live there.”

In Smith v. Smith, 61 Ariz. 373, 149 P. 2d 683, the court held that:

“ # # * aily unjustifiable conduct on the part of either spouse which so grievously wounds the feelings or so utterly destroys the peace of mind of the other as to seriously impair his health, or such as utterly destroys the legitimate ends and objects of matrimony, constitutes extreme cruelty.”
“It is all right for each to have his or her own notions and religious beliefs (17 Am. Jur. 179, Sec. 57), but if one carries such beliefs to the extent of disrupting and destroying the family life, it seems his conduct becomes cruel treatment and outrages towards his or her mate. # *

In Ferrell v. Ferrell, 28 Erie Co. L. J. 122, the court held:

“* * * even though the wife’s conduct was based on her interpretation of proper religious practices, nevertheless her conduct and its natural results cannot be excused on that account.”

In State v. Hershberger, 77 Ohio Law Abs., 487, the court held (second headnote):

“A man cannot extend his religious freedom until it infringes upon another person’s civil rights.”

Applying the law in Ohio and in our land, it appears to this court from a careful analysis of the testimony elicited from the witnesses testifying in this case that even though the defendant’s motives may have been good, nevertheless if his conduct destroys “the legitimate ends and objects of matrimony,” then his actions have constituted extreme cruelty.

It is, therefore, ordered, adjudged and decreed that the plaintiff be and she therefore is granted a divorce from the defendant and the marriage relationship heretofore existing he, and hereby is, dissolved and set aside and both parties released from the obligations of the same.

The conrt further finds, that because of the tender age of the children and because there is no testimony to controvert the fact that the plaintiff is a fit, proper and suitable person to have custody and control of the said children, that the plaintiff is therefore awarded exclusive custody and control of the children of said parties until further order of the court.

The court also feels that there should be reasonable visitation rights on the part of the defendant to see his children at such times as are mutually agreed between the parties.

It is further considered that in the light of the defendant’s income which was substantiated by his testimony and a 1962 and 1963 income tax report, and the plaintiff’s needs in establishing a home in a neighboring locality of Columbus, she would need $22,500 to purchase a home to accommodate her family, therefore, the court orders this amount paid to the plaintiff for such purpose; that plaintiff should have title to the 1963 Chevrolet automobile which is now in the defendant’s name and the household goods of the parties; and that the defendant should be ordered to pay to the plaintiff $70.00 to apply toward the balance of her attorney’s fees in this matter.

The court further orders that the defendant should pay the plaintiff $100.00 per week for the support of the four minor children.

The foregoing alimony and support orders were made in the full light and in full consideration of the defendant’s ability to pay and the property which he has accumulated, all of which has been in his name only. Defendant testified that he owns 525 acres of land; a double lot at Rocky Fork Lake; plus machinery and equipment; $7,000 in securities; $1,200 in the bank; a 1963 Chevrolet and 1958 Oldsmobile; and the following grain: 2,100 bushels of soybeans, 4,200 bushels of wheat, and 8,000 bushels of grain. His total indebtedness was $26,000, which he owed to his father; he had owed $60,000 in 1959, and this was his remaining balance.

Judgment accordingly.  