Bickford v. Bickford

• Decision Date: 18 May 1945
• Docket Number: 8529.
• Citation: 158 P.2d 796,117 Mont. 372
• Parties: BICKFORD v. BICKFORD.
• Court: Montana Supreme Court

158 P.2d 796

117 Mont. 372

BICKFORD v. BICKFORD.

No. 8529.

Supreme Court of Montana

May 18, 1945

Appeal from District Court, Seventeenth District, Valley County; R M. Hattersley, Judge.

Action for divorce by W. A. Bickford against Idella Bickford wherein defendant filed a cross-complaint seeking a divorce. From a judgment for defendant, plaintiff appeals.

Affirmed.

Jess L. Angstman, of Havre, and E. J. McCabe, of Great Falls, for appellant.

John Marriott Kline and Elizabeth Kline, both of Glasgow, for respondent.

ADAIR Justice.

This is an appeal from a judgment for the defendant and cross-complainant in a divorce action tried in Valley county Montana. The parties were married on December 21, 1936. There are no children of the marriage. On August 7, 1943, the husband filed an amended complaint asking for a divorce based on extreme cruelty. Defendant answered denying the allegations of cruelty and, by cross-complaint, sought a divorce from plaintiff upon the same ground, and plaintiff replied.

The cause was tried to the court sitting without a jury and thereafter the court made findings of fact and rendered a decree in favor of the defendant and cross-complainant. By the decree the marriage was dissolved and plaintiff ordered to 'pay now $500.00 to the defendant, and * * * $25.00 a month, until further order of court.'

The specifications of error challenge the sufficiency of the evidence to support the decree and the court's findings of fact numbered 4, 5 and 6.

The cross-complaint alleges that, 'plaintiff has been guilty of extreme cruelty towards the defendant consisting of grievous mental suffering upon the defendant, in that for a period of more than one year last past the plaintiff has been running around with various women and going on wild parties with them; that among other times are the following instances: On or about June 1, 1937 the plaintiff entertained a blonde woman whose name the plaintiff knows but the defendant does not know, at the Palm, formerly a beer hall and dance place in Glasgow; that on numerous occasions in the winter of 1939-1940 the plaintiff and one known as * * * were on drunken parties held in the Rose Room, a beer hall in Glasgow and also in other beer halls in Glasgow * * * that on or about September 6, 1941, the plaintiff came in to Johnnies' Cafe in Glasgow with another couple, and a girl, whose name the defendant does not know but the plaintiff does, that the defendant was at that time working at Johnnies' Cafe and that she served them and that while they were there they were embracing each other, that they paid no attention to the defendant; * * * that all of the above matters have been of such a nature as to justly and reasonably destroy, and the same has destroyed the peace of mind and happiness of the plaintiff, and the same is of such a nature as to entirely defeat the proper and legitimate objects of matrimony and to render the continuance of the marital state between the parties perpetually unreasonable and intolerable to the defendant.'

The cross-complaint also alleges that plaintiff owns certain real and personal property; that he is employed as an engineer on the Great Northern Railroad earning between three hundred and six hundred dollars a month; that defendant is working and earning upwards of eighty-five dollars a month, but that she has been advised by competent medical authority that she will not be able to work regularly; that she will need one hundred to one hundred fifty dollars a month to properly take care of herself and that plaintiff can well afford to pay her such amount as alimony. The prayer is that plaintiff be denied a divorce and that defendant and cross-complainant be awarded a divorce and permanent alimony.

In his reply plaintiff denies the allegations of cruelty in the cross-complaint 'save and except that on or about June 1, 1937 there is a possibility that he and a blonde woman might have been seen together at the 'Palm,' a beer hall in Glasgow.'

Plaintiff's evidence wholly failed to prove the charges of cruelty made in the complaint and the only question before us is whether the evidence sustains the challenged findings of fact and decree made in favor of defendant.

On appeal to this court the presumption is that the decree and findings of the trial court are correct. In re Bragg's Estate, 106 Mont. 132, 76 P.2d 57; Missoula Light & Water Co. v. Hughes, 106 Mont. 355, 77 P.2d 1041; Cedar Creek Oil & Gas Co. v. Archer, 112 Mont. 477, 117 P.2d 265; Wieri v. Anaconda Copper Min. Co., Mont., 156 P.2d 838; Whitcomb v. Koechel, Mont., 158 P.2d 496.

The findings of the trial court must be sustained if they are supported by substantial evidence. Kommers v. Palagi, 111 Mont. 293, 108 P.2d 208. All legitimate and reasonable inferences must be indulged toward upholding the findings. Welch v. Thomas, 102 Mont. 591, 61 P.2d 404. In case of any reasonable doubt as to the sufficiency of the evidence to sustain a finding, the appellate court should resolve that doubt in favor of the finding and, in reading the record and considering the evidence and inferences, the court should be realistic and practical. Fackrell v. City of San Diego, Cal., 157 P.2d 625.

The trial court's findings in question recite:

'4. That the

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