Blair v. Blair

• Decision Date: 16 January 1912
• Docket Number: 2281
• Citation: 40 Utah 306,121 P. 19
• Court: Utah Supreme Court
• Parties: BLAIR v. BLAIR

121 P. 19

40 Utah 306

BLAIR v. BLAIR

No. 2281

Supreme Court of Utah

January 16, 1912

APPEAL from District Court, Second District; Hon. J. A. Howell Judge.

Action by Julia C. Blair against Preston A. Blair.

Judgment for plaintiff. Plaintiff appeals from that part of the decree relating to the amount of alimony, attorney's fees and the appointment of a trustee.

MODIFIED AND AFFIRMED.

Valentine Gideon for appellant.

A. G Horn for respondent.

FRICK C. J. MCCARTY and STRAUP, JJ., concur.

OPINION

FRICK, C. J.

The appellant brought this action praying for a divorce, custody of her infant child, and alimony. The facts found by the court which are not assailed, and which must therefore be taken as true by us, are, in substance, as follows:

That appellant and respondent were married in Ogden, Utah, July 5, 1906, and that they, at the commencement of this action, and for many years prior thereto, were residents of Weber County, Utah; that respondent for "the past two years had willfully neglected to provide the plaintiff with the common necessaries of life, and that the plaintiff has been compelled to and has supported herself by her own personal efforts," although respondent was abundantly able to provide her with the necessaries of life out of his own means and property, which is of the value of $ 40,000; that the fruit of said marriage is one male child, which is of the tender age of eleven weeks, and for that reason the care and custody thereof is awarded to appellant; that she has no means or property of her own, and is dependent upon her relatives and her own efforts to support herself and said child; that at the time of said marriage respondent was a widower, having a family of ten children, and the property owned by him as aforesaid was all accumulated by him before he married the appellant through the efforts of himself and that of his former wife and the children aforesaid; that none of said children is now dependent upon respondent for support, except one girl of the age of seventeen years, who lives with him on his farm near Ogden, Utah; that the best interests of both parties require that a sum in gross be fixed to be paid by respondent to appellant as permanent alimony; that the sum $ 4500 is an equitable and just amount as permanent alimony; that it is to the best interests of appellant that said sum be paid to a trustee for her use and benefit; that fifteen dollars per month is a sufficient amount to be paid by respondent to appellant for the support and maintenance of said minor child during his minority; that, after appellant and respondent were married, he gave her twenty-one shares of the capital stock of a certain corporation, which stock was of the value of $ 2000, all of which she retained, except the sum of $ 375 which she returned to respondent; that for about seven months immediately after the marriage appellant and respondent lived together as husband and wife on respondent's farm near Ogden, Utah, and that thereafter appellant with the money realized, from the capital stock aforesaid entered into mercantile business in Ogden upon her own account, and subsequently in Ely, Nev.; that said business required about all of her time, returning to her home on the farm during the nighttime only, and that she was unsuccessful in said enterprises and failed in business; that appellant, after she failed in said mercantile enterprises, conducted a real estate business in Ogden, and as a bookkeeper and stenographer earned money with which she supported herself without any aid or assistance from respondent; that $ 200 is a reasonable attorney's fee for appellant's counsel. The evidence also discloses that respondent at the time of the trial was fifty-nine years of age, and that appellant was twenty-seven years younger than he. Upon substantially the foregoing facts the court granted appellant's prayer for a divorce and entered an interlocutory decree of divorce in her favor as provided for by our statute, awarding her the care and custody of her minor child, and decreeing that respondent for her use and benefit shall pay to a trustee to be agreed upon by the parties, or, in case they cannot agree, to be appointed by the court, the sum of $ 4500 in cash as and for permanent alimony; that respondent also pay during the minority of the child, or until the further order of the court, the sum of fifteen dollars per month payable monthly to appellant for the support of said child, and that he further pay the sum of $ 200 as an attorney's fee to appellant's counsel, together with the costs of the action.

The appeal is from those portions of the decree only which relate to the amount of the alimony, the amount of attorney's fee, and the appointment of a trustee.

Counsel for appellant vigorously contends that, in view of the finding that respondent possessed property of the value of $ 40,000, the sum allowed appellant as...