Cunningham v. Cunningham

Annotate this Case

154 A.2d 124 (1959)

Etta Mae CUNNINGHAM, Appellant, v. Casey CUNNINGHAM, Appellee.

No. 2395.

Municipal Court of Appeals for the District of Columbia.

Argued May 18, 1959.

Decided August 25, 1959.

George B. Parks, Washington, D. C., with whom Walter E. Washington and Robert A. Harris, Washington, D. C., on the brief, for appellant.

Daniel I. Sherry, Washington, D. C., entered an appearance for appellee, but filed no brief.

Before ROVER, Chief Judge, and HOOD and QUINN, Associate Judges.

QUINN, Associate Judge.

This is an uncontested appeal from a judgment dismissing a wife's suit for a limited divorce on the ground of cruelty. The wife's testimony was that her husband had threatened her on many occasions and had perpetrated three assaults on her, which occurred in 1951, 1953, and 1958. After the first two incidents the wife apparently forgave her husband and resumed marital relations. She testified that in December 1958 appellee threatened her and subsequently left home in January 1959.

At the conclusion of the evidence, the court stated:

"I find as a fact that this woman hasn't made out any case of cruelty. From the way she testified, from the words she used as I understood them, the way she acted on the stand, she wasn't particularly concerned about this man's conduct. She lived with him and continued to have intercourse with him after 1951 and 1953. * * * the only time that she ever had any difficulty with him was when he was drinking and when he got to drinking he would always argue and then make some sort of commotion. She didn't seem to me to be upset by the commotion he committed. I find as a fact that she didn't."

While several errors are alleged, they may be grouped under one heading, namely, that the judgment based on the evidence is plainly wrong. We have carefully considered the transcript and we are satisfied that appellant has failed to sustain her burden of persuading us that we *125 should reject the findings and conclusions of the trier, and substitute others favorable to her. No authority need be cited in support of the proposition that the court sitting without a jury as trier of the facts determines the credibility of the witnesses and the weight to be accorded their testimony, and its findings will not be disturbed unless clearly erroneous. We hold that the record discloses sufficient evidence to support the finding.