Anderson v. Anderson

• Citation: 138 P.2d 252,104 Utah 104
• Decision Date: 04 June 1943
• Docket Number: 6563
• Court: Utah Supreme Court
• Parties: ANDERSON v. ANDERSON

138 P.2d 252

104 Utah 104

ANDERSON v. ANDERSON

No. 6563

Supreme Court of Utah

June 4, 1943

Appeal from District Court, First District, Cache County; M. M Morrison, Judge.

Action by Carl Anderson against Effie T. Jensen Anderson for divorce, wherein defendant interposed a counterclaim. Judgment for plaintiff, and defendant appeals.

Affirmed.

B. C Call, of Brigham, for appellant.

George C. Heinrich, of Logan, for respondent.

LARSON Justice. WOLFE, C. J., and McDONOUGH, MOFFAT, and WADE, JJ., concur.

OPINION

LARSON, Justice.

Plaintiff brought this action in the lower court for divorce on the ground of cruelty, and defendant counterclaimed for divorce on the same ground, asking also temporary alimony, suit money and permanent alimony or a property settlement. From a judgment in favor of plaintiff on all questions, defendant appeals.

Plaintiff, a bachelor, 66 years of age, advertised in a Logan paper for a wife, the advertisement reading,

"Wanted: by well-to-do bachelor, a middle-aged woman, preferably Scandinavian. Object courtship and marriage, write particulars to Lonesome, Box 215, Logan, Utah."

Defendant answered this advertisement, and after about a year of courtship, during which time defendant went to plaintiff's home in Smithfield a number of times, she married plaintiff in Preston, Idaho, on August 25, 1941. This marriage lasted for only five days, and then in a quarrel over whether defendant's married daughter, Ruth, and her infant, should come and live with them, defendant became angry and returned to Logan. She has not since lived with plaintiff.

Defendant makes twelve assignments of error, which may be considered under three different headings: First, whether the lower court erred in refusing to issue an order to plaintiff to show cause why he should not pay temporary alimony, suit money and attorney fees, both on the trial below and upon appeal. Second, whether the trial court erred in giving judgment in favor of plaintiff on his complaint. Third, whether the lower court erred in giving judgment against defendant on her counterclaim, and denying her permanent alimony or a property settlement. We note them in order.

In Mann v. Morrison, 102 Utah 282, 130 P.2d 286, we held that upon a proper application, an order to show cause in cases of this kind should issue as a matter of course. It then becomes merely a question as to whether a sufficient application was made, in order to determine whether the lower court was in error in denying petition for an order to show cause. In the instant case it would serve no useful purpose to examine the affidavits in support of the motion, to see whether a sufficient showing was made, as there is no showing that the refusal to grant the order was prejudicial. Defendant was represented by able counsel, had her witnesses in court, and presented her case in the lower court, and her appeal has been prosecuted to this court. Defendant makes no showing as to how she was prejudiced by the lower court's refusal to issue the order to show cause. Had she brought a proceeding for a writ of mandamus to compel the issuance of the order before trial, or did the record show that the presentation of her case might have been prejudiced by the refusal, we would make a determination of the sufficiency of allegations to require the order, as in Mann v. Morrison, supra. We find no prejudicial error requiring reversal on that account, and so shall not determine whether or not a proper showing was made.

This court has many times set out the scope of review in cases of this kind. In Steed v. Steed , 54 Utah 244, 181 P. 445, 447, the court said:

"This is an equity case, however, and plaintiff is entitled to our judgment on the evidence. If, therefore, the court's finding is clearly against the evidence, it is our duty to make or to direct findings in accordance with the evidence. This, it must be remembered, however, is a divorce proceeding in which the state or society is interested. * * * While ordinarily, if the complaining party makes out a case under the statute, the court should grant a divorce, yet there may be conditions and circumstances under which the chancellor should exercise at least a sound discretion in granting or withholding relief and in determining the extent thereof. Under such conditions the facts and circumstances of the particular case should be permitted to control the chancellor's conclusions."

In other words, this is a statement of the generally accepted equity rule of review, slightly modified in the special situation of divorce cases, so that every case must, in part, be decided on its own peculiar facts.

At the outset, it must be conceded that if the matters alleged in the complaint, actually took place, it would be sufficient grounds of cruelty to warrant granting a divorce to plaintiff. While the evidence is conflicting, the court found the allegations to be true. There is sufficient evidence to support such findings of the trial court. It must be remembered that the lower court saw the...