Benson v. Benson
| Decision Date | 03 February 1915 |
| Docket Number | 2653 |
| Citation | 146 P. 564,45 Utah 514 |
| Court | Utah Supreme Court |
| Parties | BENSON v. BENSON |
Appeal from District Court, Third District; Hon. M. L. Ritchie Judge.
Suit for divorce by Axel L. Benson against Anna M. Benson.
Decree denying the divorce and awarding relief as to property. Defendant appeals.
REVERSED, and cause remanded, with directions to dismiss the complaint.
Willard Hanson for appellant.
Ross M Bonny for respondent.
This is an action for a divorce commenced in 1912. In the complaint, after alleging residence, marriage, and the names and ages of the children, four of them, from nine to three years of age, the plaintiff alleged:
That "the defendant treated him in a cruel manner, and in particular as follows": That the defendant "has been unduly unfamiliar with other men, bestowing and receiving attentions from them," and especially "has been unduly familiar with one" N., "receiving and bestowing affections upon him in the presence of the children"; that the defendant, four months prior to the filing of the complaint, "refused to longer live with the plaintiff, and thereupon left plaintiff and moved from their home at Sandy, and took up her place of abode in Salt Lake City, where she has ever since resided, and where she is constantly in the company of" N., and that "the plaintiff gave defendant no reason or cause for her conduct toward him."
He further alleges:
That when the defendant left him he deeded to her a tract of land 9.783 acres in Salt Lake County, "to be held in trust by her for the use and benefit of the children"; but that "the plaintiff avers that he verily believes that the defendant will transfer and convey said land and dissipate and squander the proceeds derived from the sale thereof."
He also alleges:
That the defendant placed the children "in an orphanage or day nursery in Salt Lake City, against the will and without the consent of the plaintiff, and has refused and still refuses to allow plaintiff to contribute to the support and maintenance of said children, although he is able and willing to do so."
But how he was prevented, or why he did not provide for his children, is not alleged, nor is it alleged that, when the defendant left him, she or he retained the custody of the children. All this, it is alleged, "caused plaintiff great mental distress," and upon that prayed judgment for a dissolution of the marriage, the custody of the children, and that the defendant be restrained "from transferring, disposing of, or incumbering the land" conveyed to her by him.
The defendant, answering, admitted the allegations of residence, marriage, names and ages of the children, and denied the other allegations. By way of counterclaim she prayed for a dissolution of the marriage, the custody of the children, permanent alimony for her and their support, on alleged grounds of failure to support and of cruelty. Upon these issues the case was tried to the court. The plaintiff adduced his evidence and rested. The defendant also rested, dismissed her counterclaim, and moved for a dismissal of the complaint for want of evidence to support it. The court, though holding there was not sufficient evidence to entitle the plaintiff to a divorce, nevertheless refused to dismiss the complaint, and made and entered findings. They, omitting those relating to the marriage, residence, and children, are:
That "on or about the 9th day of April, 1912, the plaintiff and the defendant became separated, and since that time have not lived together as husband and wife; that the charge of cruelty, as set forth in the complaint, is not sustained by a preponderance of the evidence; that on or about April 27, 1912, by mutual agreement," the real property mentioned in the complaint "was by the plaintiff conveyed by deed to the defendant, and was by her accepted, to be held in trust for the use and benefit of" the children; "that the defendant is shown by the evidence to be an improvident person and incompetent and unfit to administer the trust for the benefit of said minor children, and it is necessary that the legal title to said property be vested in some other person to prevent the property aforesaid from being conveyed away, squandered, or lost to the beneficiaries; that the Utah Savings & Trust Company, a corporation," etc., "is a proper person to hold the legal title to said real property for the purposes aforesaid; that the evidence shows that the children aforesaid are not now in the immediate, personal custody of either the plaintiff or the defendant, but are being properly cared for in an orphanage, and it is therefore unnecessary and inadvisable at this time and in this case to make any order as to their care or custody, the court leaving that to be determined by application invoking the probate jurisdiction of the proper court, if occasion should arise."
Upon that the court stated conclusions, and decreed and adjudged that "the plaintiff is not entitled to a divorce on the ground of cruelty, because of the insufficiency of the evidence to sustain the charge in the form alleged," that the defendant "be permanently enjoined from disposing of or incumbering the said real property, or in any wise conveying it, except" to the trust company, and adjudged and decreed that she within twenty days convey it to that company.
That is the whole of the judgment. No divorce was granted; the court holding and decreeing the evidence insufficient "to sustain the charge in the form alleged." Since no divorce was granted, and since the children were "properly cared for in an orphanage," the court, without making any disposition as to their custody or any provision for their support, left them where he found them, to be dealt with by the "probate jurisdiction of the court," and adjudged that the defendant convey the real estate to the trust company. The defendant appeals.
Numerous assignments are made. Among them are those challenging:
(1)The sufficiency of the complaint to constitute a cause of action for a divorce and To entitle the plaintiff to the demanded relief; (2) the sufficiency of the evidence to support the finding that the conveyance was made to the defendant in trust as alleged, or that she was "an improvident person, and incompetent and unfit to administer the trust"; and (3) the power of the court--under the pleadings, the evidence, the findings, and especially upon the finding that the plaintiff, on...
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