Anderson v. Anderson

• Decision Date: 07 April 1919
• Docket Number: 3305
• Court: Utah Supreme Court
• Parties: ANDERSON v. ANDERSON

181 P. 168

54 Utah 309

ANDERSON v. ANDERSON

No. 3305

Supreme Court of Utah

April 7, 1919

On Application for Rehearing May 27, 1919.

Appeal from District Court, Third District, Salt Lake County; Wm. H Bramel, Judge.

Suit by Bertha G. Anderson against Robert G. Anderson. Decree for plaintiff, and defendant appeals.

AFFIRMED.

Soren X. Christensen and Chris Mathison, both of Salt Lake City for appellant.

F. B Scott and David H. Cannon, both of Salt Lake City, for respondent.

CORFMAN, C. J. FRICK, WEBER, GIDEON, and THURMAN, JJ., concur.

OPINION

CORFMAN, C. J.

Plaintiff brought suit against the defendant, her husband, for separate maintenance. The grounds alleged were cruelty. The defendant denied cruelty. The trial court found the issues for the plaintiff, and by its decree awarded her separate maintenance, attorney's fees and costs. The court ordered that the defendant be restrained from disposing of or incumbering his property without leave of court. It was also decreed that the alimony awarded the plaintiff should be a lien and charge upon the defendant's property until the further order of the court. Defendant appeals.

The defendant complains that the trial court erred and assigns as grounds for reversal the following: (1) That the evidence is insufficient to sustain the finding of the court that the plaintiff, without her fault, lives separate and apart from the defendant; (2) that the court erred in failing to make findings on the issues whether the defendant had without cause deserted the plaintiff, and whether defendant, having the ability, had neglected to provide for and suitably maintain the plaintiff; (3) that the court erred in ordering that the defendant be restrained from disposing of or incumbering his property without leave of court; (4) that the court erred in adjudging the alimony decreed to be a lien on defendant's property until the further order of the court.

(A) The first and principal contention made by defendant has necessitated our reviewing the testimony. After so doing we would not feel justified in holding that the decision of the trial court is not supported by a fair preponderance of the testimony. It is apparent, however, that in some measure, at least, the plaintiff was not entirely without fault. The testimony shows that oftentimes the differences between the parties were over matters trivial in nature, and in the disputes that followed they were equally to blame. However, on several occasions, the defendant, without sufficient cause or excuse, commanded the plaintiff to leave the house to "get out and go--get out of my house; I don't want you sticking around here; rustle your own living." Again, the plaintiff testified, referring to the defendant's attitude toward her in the home: "He told me time and again to get out and go; that he was through with me." The plaintiff further testified that on these and other occasions referred to in the testimony the defendant's attitude towards her was such that she became so nervous and sick as to require medical aid and treatment. There is also testimony in the record tending to show that the plaintiff on these occasions endeavored to effect a reconciliation with the defendant, without avail. Indeed, during the progress of the trial, after the defendant expressed a willingness to live with the plaintiff, the court afforded the parties an opportunity to adjust their differences, when, instead of trying to effect a reconciliation, the defendant indulged himself in making accusations against the plaintiff of improprieties and misconduct with another man. As we view the testimony, the attitude of the defendant towards the plaintiff was such as to compel her to live separate and apart from him without fault on her part. It is wholly unnecessary to refer to and discuss the testimony in detail. Suffice it to say there is ample proof pointed out to sustain the trial court's findings and decision that the plaintiff lives separate and apart from the defendant without her fault.

(B) It follows from what has already been said that there is no merit in the defendant's contention that the trial court erred in failing to expressly find that the defendant had without good and sufficient cause deserted the plaintiff, and whether the defendant, having sufficient ability, had neglected or refused to provide and suitably maintain the plaintiff.

It is fundamental that, if the conduct of the defendant towards the plaintiff was such as to legally entitle her to live separate and apart from the defendant, she would be entitled to separate maintenance, regardless of whether or not the defendant deserted the plaintiff, or whether he had refused to maintain her. Plaintiff's action was predicated on cruelty, not on the ground of desertion or failure to provide. Willardson v. Willardson, 172 P. 719; Smith v. Smith, 154 Mass. 262, 28 N.E. 263.

(C) As to the third and fourth contentions made by defendant we think the rule is firmly established that in suits of this nature, where alimony is allowable, in order to insure...