REYNOLDS v. REYNOLDS

HERRMANN, Justice.

In this action for divorce brought on the ground of extreme cruelty,* the Superior Court denied a decree, holding that the plaintiff wife had failed to sustain her burden of proof by a preponderance of the evidence in "view of the lack of corroborative evidence and the direct conflict in the testimony of the parties." The plaintiff appealed; the defendant husband did not appear in the appellate proceedings, although he did contest the divorce action below.

At the trial, the plaintiff testified substantially as follows: There were two main instances of physical abuse. On the first occasion in 1962, while intoxicated in their home, the defendant struck the plaintiff, beat her with a pocketbook, pushed her down on a couch, and knocked her down the steps. On that occasion, he repeatedly threatened to kill her. The plaintiff fled the home, stayed the night at a hotel, and the next day took an apartment. She returned for her clothes under the protection of police officers because of her fear of her husband. After several days of continued threats upon her life, the plaintiff left for Ohio where she had relatives; she stayed there for about six months.

After repeated importunings by the defendant, the plainiff consented to return to him upon his promises to reform. Soon thereafter, however, the defendant returned to heavy drinking and violent action and threats toward the plaintiff, as the result of which she was frequently obliged to leave the home. The plaintiff continued to live with the defendant until December 1966. As the result of repeated threats to kill her, the plaintiff finally left and moved into a trailer. Shortly thereafter, following telephone threats to kill her, the defendant, waving a large claw-hammer, broke into the trailer, after smashing windows and breaking the door, shouting meanwhile that he was going to kill the plaintiff. She called the police, but before they had time to arrive, the defendant wrecked much of the contents of the trailer, seized the plaintiff, pushed her against the wall, beat her head and "banged" her against the wall, twisted her arms, and repeated his threats to kill her. The plaintiff was able to avoid hammer blows only by struggling. A neighbor, Mrs. DuRoss, was present during this incident. The plaintiff fled the trailer and had the defendant arrested for assault and battery.

The plaintiff testified repeatedly that by reason of the violent conduct of her husband over a long period of time, she feared for her life and was unable to live with him in safety.

Mrs. DuRoss, the neighbor who witnessed the trailer incident testified that she was visiting the plaintiff when the defendant arrived at the trailer; that the defendant brandished the claw-hammer and shouted threats to kill the plaintiff. Mrs. DuRoss stated that she saw the defendant smash the furniture and furnishings of the trailer, heard the repeated threats, and witnessed the following:

Mrs. DuRoss also testified that the defendant returned to the trailer after the plaintiff had fled therefrom, and did further damage. Immediately after the struggle, Mrs. Du-Ross noticed bruises on the plaintiff's arms and the plaintiff told her that they were inflicted by the defendant during the fracas.

Further evidence was given by Mrs. Weber, a friend of the plaintiff, who testified as follows:

Countering the foregoing testimony of the plaintiff and the corroborating witnesses, there was only the disavowal of the defendant that he had ever struck or threatened his wife at any time during their marriage; that he loved her very much, and that he wanted her to return to him.

With the evidence in that posture, the Superior Court denied the petition for divorce on the ground that the plaintiff had failed to sustain her burden of proof by a preponderance of the evidence.

We have reviewed the facts and the law in this case. Nelson v. Murray, Del., 211 A.2d 842 (1965). It is our opinion that the testimony of Mrs. DuRoss and Mrs. Weber constituted sufficient corroborative evidence to tip the scales heavily in the plaintiff's favor, assuming that the testimony of the parties was, as the Trial Judge found, in equipoise. Compare Lecates v. Lecates, Del.Super., 8 W.W.Harr. 190, 190 A. 294 (1937). We are unable to agree, therefore, with the conclusion of the Trial Judge that the plaintiff failed to sustain her burden of proving extreme cruelty by a preponderance of the evidence. The side on which the greater weight of the evidence is found is the side on which the preponderance of the evidence exists. We are satisfied that by far the greater weight of the evidence in this case clearly rests on the plaintiff's side of the scale.

There is, of course, a limit to the amount of corroboration an abused wife can adduce. Wife-abusers do not usually operate before witnesses. Moreover, the requirement of corroborative evidence is less stringent in a contested divorce case than in an uncontested case. Since collusion is less probable in a contested case, less corroboration is necessary. See Annotation, 15 A.L.R.2d 170, et seq.; 3 Nelson, Divorce and Annulment, (2d Ed.) § 26.13; Senderoff v. Senderoff, 133 Conn. 300, 50 A.2d 422 (1946); McLaughlin v. McLaughlin, 244 S.C. 265, 136 S.E.2d 537 (1964).

In a close case, we would not disturb the Trial Court's conclusions as to the weight of the evidence. Compare Anton v. Anton, 10 Terry 431, 118 A.2d 605 (1955); Lacombe v. Lacombe, 78 R.I. 118, 79 A.2d 760 (1951); Glendening v. Glendening (D.C.App.) 206 A.2d 824 (1965). Nor would we ordinarily substitute our judgment for that of the Trial Judge as to the credibility of witnesses whom he saw and heard. Nardo v. Nardo, Del., 209 A.2d 905 (1965). But the Trial Judge did not state that he disbelieved the corroborating witnesses; rather, he stated that there was a "lack of corroborative evidence."

In view of the testimony herein-above set out, we think that the conclusion of the Trial Court was clearly wrong, and that justice requires a ruling that the plaintiff has sustained her burden of proving extreme cruelty by a preponderance of the evidence. Compare Lank v. Steiner, Del., 224 A.2d 242 (1966).

Accordingly, the judgment below must be reversed with directions to issue a decree nisi.