Beckle v. Beckle

• Decision Date: 27 March 1969
• Docket Number: No. 3720,3720
• Parties: Clarence Henry BECKLE, Appellant (Defendant below), v. Helen Marie BECKLE, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 205

452 P.2d 205

Clarence Henry BECKLE, Appellant (Defendant below), v. Helen Marie BECKLE, Appellee (Plaintiff below).

No. 3720.

Supreme Court of Wyoming.

March 27, 1969.

Peter J. Mulvaney, of Guy, Williams, White & Mulvaney, Cheyenne, for appellant.

Brooke Wunnicke, of Fennell & Wunnicke, Cheyenne, for appellee.

Before GRAY, C. J., and McINTYRE, PARKER, and McEWAN, JJ.

Mr. Justice McINTYRE delivered the opinion of the court.

The appeal in the case we are dealing with questions the property settlement made by District Judge John F. Raper when a divorce was granted to Helen Marie Beckle from Clarence Henry Beckle.

The first marriage of these parties was severed by a divorce which the husband obtained in 1949. The parties were then remarried in 1960. Three children were born during the first marriage, but none were minors at the time of the divorce we are now concerned with.

The appellant-husband contends the decree entered by the trial court is grossly unjust and contrary to applicable principles of law in three respects:

1. Because the decree awards plaintiff an excessive amount of property;

2. Because the decree is based on the concept of punishment of the husband; and

3. Because the decree is unworkable and will have the effect of putting appellant out of business.

Counsel for appellant recognizes the provisions contained in § 20-63, W.S.1957, which have to do with the disposition of property when a divorce is granted. Our court has had occasion to construe and apply this statute many times. Counsel on both sides seem to be aware of the principles adhered to, and previous cases cited by them include Biggerstaff v. Biggerstaff, Wyo., 443 P.2d 524; Warren v. Warren, Wyo., 361 P.2d 525; Boschetto v. Boschetto, 80 Wyo. 374, 343 P.2d 503; and Crawford v. Crawford, 63 Wyo. 1, 176 P.2d 792.

Point 1. Appellant's contention that the award to plaintiff was excessive is based on the assumption the dividing court did not give proper recognition to that part of § 20-63 which states the court shall make such disposition of the property as shall appear just and equitable, having regard to 'the party through whom the property was acquired.'

According to appellant's figures, the parties' net worth was approximately $123,260. He complains because the allowance to plaintiff was substantially 35% of everything or $43,141. He neglects to mention the value left for defendant was about $80,119 or 65%.

Also, appellant overlooks that § 20-63 requires the court to have regard to 'the respective merits of the parties' and 'the condition in which they will be left' by the divorce. Admittedly, defendant's conduct had given ample ground for the granting of a divorce to plaintiff. Suffice it to say, as far as merits are concerned, defendant's attorney concedes the conduct of defendant had been despicable.

We do not imply, however, that defendant's conduct had been such as to justify punishment through the property settlement. This we will discuss later. For now we want to merely mention in passing that the wife appears to be a middle-aged, unemployed woman left by the divorce without a home and without assets except such as were awarded to her in the decree. The family home-a ranch home-was left to the husband.

It is argued on behalf of the husband that the property here involved was mostly acquired by defendant after the parties were first divorced in 1949 and prior to the eight years of their second marriage. Counsel for the wife counters that a substantial part was acquired during the first marriage.

Without getting into that dispute, we are more impressed by the fact that prior to their second marriage the parties entered into an oral antenuptial agreement to the effect that the husband would transfer his property so that he and his wife would own it jointly. In keeping with the agreement, most of the real estate was transferred so that title was in the name of husband and wife as tenants by the entirety.

This brings us to another phase of the guidelines set out in § 20-63. Not only is the court to have regard to the respective merits of the parties; to the condition in which they will be left and to the party through whom the property was acquired; but the court is also required by the statute to have regard to 'the burdens imposed upon it (the property), for the benefit of the wife.'

The evidence in this case indicates the antenuptial agreement was to the effect that husband and wife would own the property 'share and share alike.' Therefore, with the major portion of the property in joint ownership pursuant to this agreement, it is clear there was a substantial burden imposed upon the property for the benefit of the wife.

All these matters considered, we cannot say as a matter of law the action of the district court in awarding approximately 35% of the property to the wife was clearly unjust and inequitable. It is not a function of this court to constitute itself as a court of the first instance to divide the property. Boschetto v. Boschetto, 80 Wyo. 374, 343 P.2d 503, 506.

Point 2. Appellant says judicial discretion should not be so exercised as to reward one party and punish the other. For this he cites Britz v. Britz, 95 Ariz. 247, 389 P.2d 123, 124; and Porter v. Porter, 67 Ariz. 273, 195 P.2d 132, 140. We do not disagree with this principle.

However, we find nothing in the record before us to indicate either reward or punishment was involved in the decree of the district court. There would be no basis for believing punishment was intended unless we first assumed, as appellant argues in Point 1, that the award to plaintiff was excessive and not just or equitable.

The crux of appellant's argument regarding punishment is that the trial court must have based its decree on an intent to punish defendant, as there is no other explanation for the severity of its effect upon appellant. Inasmuch as we do not accept the contention that the award to plaintiff, under all the circumstances present, was unjust or inequitable, it follows that we cannot say the effect on the husband was so severe as to denote an intent to punish him.

Point 3. When appellant argues the decree is unworkable and will have the effect of putting him out of business-the ranching and livestock business-it seems to us he is really saying again the share awarded the wife was too much; and that if she shares in the property, he will not be able to carry on ranching operations on the scale he and his wife together carried them on before the divorce.

Of course, that would be true no matter what kind of business the parties owned. When a marriage ends in divorce and the business property has to be divided, the business will not thereafter be the same.

Unfortunately, appellant has been silent as far as suggesting a more workable plan which would still assure the wife a just and equitable share of the property being distributed. Even if such a plan could now be conceived, it would be difficult for us to put it into effect without constituting our court a court of the first instance to divide the property. We have already indicated such is not the function of an appellate court.

If appellant has something better to suggest, aside from a material change in the shares of the respective parties, it should have been presented to the district court, since generally matters not presented first to the court below cannot be raised on appeal. In re Bridger Valley Water Conservancy District, Wyo., 401 P.2d 289, 292

There is, however, a point to be considered in connection with the decree of the district court insofar as it relates to support money and cattle. At the outset of the case, the defendant-husband was ordered to pay plaintiff $200 per month 'during the pendency of this action.'

...