Callahan v. Callahan

• Decision Date: 23 September 1920
• Citation: 192 P. 660,33 Idaho 241
• Parties: JAMES F. CALLAHAN, Appellant, v. HELEN ELIZABETH CALLAHAN, Respondent
• Court: Idaho Supreme Court

192 P. 660

33 Idaho 241

JAMES F. CALLAHAN, Appellant, v. HELEN ELIZABETH CALLAHAN, Respondent

Supreme Court of Idaho

September 23, 1920

DIVORCE-FINDINGS-DIVISION OF COMMUNITY PROPERTY-ATTORNEY FEES AND SUIT MONEY-EXPENSE ON APPEAL.

1. In an action for divorce, on the ground of extreme cruelty, the court should make findings upon every charge of misconduct of that nature on which testimony has been presented. Whether such charges are true or false, a finding thereon is required when community property is to be divided, to enable the court, if a divorce is granted, to make an equitable division thereof.

2. Where counsel for the wife is responsible for acts of extreme cruelty on her part which might be the basis of a divorce on that ground, the husband is not required to pay for the services of such counsel rendered on her behalf in the case.

3. In an action for divorce where counsel entered into a stipulation to the effect that the trial court should fix the amount of attorney fees and suit money to be allowed the wife, without expert testimony as to the value of the attorney's services rendered in her behalf, and without evidence of the amount of suit money expended, or for what purpose, other than the filing of a statement by her attorney of the amount so expended, the husband is bound by such stipulation and cannot thereafter be heard to complain, in the absence of a showing that the trial court abused its discretion in making the allowance.

4. In an action for divorce, where conspiracy is alleged in the cross-complaint, the court need not find on all the various allegations which it is claimed tend to prove the existence of such conspiracy when the court actually finds, as an ultimate fact, that no conspiracy was entered into; and such finding, based on substantially conflicting evidence, will not be disturbed.

5. The amount of attorney fees and suit money fixed by the court upon stipulation of counsel in this case, will not be disturbed, except in so far as the matter may be affected by findings hereafter to be made by the district court in regard to the charges of misconduct by respondent with her counsel.

6. The district court may, upon the cause being remanded to it for additional findings, make a new order with respect to the division of the community property, assigning it to the respective parties in such proportions as, from all of the facts heretofore found and to be hereafter found, and the condition of the parties, the court may deem just, as directed by C. S., sec. 4650.

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. Robert N. Dunn, Judge.

Action for divorce. Judgment for plaintiff and order for attorney fees made after judgment. Reversed and remanded.

Reversed and remanded with instructions.

Walter H. Hanson and Donald A. Callahan, for Appellant.

Under the evidence and the findings of fact made by the trial court, the distribution of the community property made by the court was unjust and inequitable. Respondent contributed nothing to the community property, and by her conduct forfeited all right to share in it. (Leupold v Leupold, 164 Iowa 595, 146 N.W. 55; Neander v Neander, 35 Colo. 495, 84 P. 69; Spaulding v. Spaulding, 133 Ind. 122, 36 Am. St. 534, 32 N.E. 224; Conner v. Conner, 29 Ind. 48; Spitler v. Spitler, 108 Ill. 120; Goldsmith v. Goldsmith, 6 Mich. 285; Fivecoat v. Fivecoat, 32 Iowa 198; Ecker v. Ecker, 22 Okla. 873, 98 P. 918, 20 L. R. A., N. S., 421; Davis v. Davis, 134 Ga. 804, 20 Ann. Cas. 20, 68 S.E. 594, 30 L. R. A., N. S., 73; Hickling v. Hickling, 40 Ill.App. 73; Beeler v. Beeler, 19 Ky. Law Rep. 1936, 44 S.W. 136; Dollins v. Dollins, 26 Ky. Law Rep. 1036, 83 S.W. 95; Robards v. Robards, 33 Ky. Law Rep. 565, 110 S.W. 422; Wheat v. Owens, 15 Tex. 241, 65 Am. Dec. 164; Carroll v. Carroll, 20 Tex. 731; Barnett v. Barnett, 9 N.M. 205, 50 P. 337; Llula's Succession, 44 La. Ann. 61, 10 So. 406; Strozynski v. Strozynski, 97 Cal. 189, 31 P. 1130.)

It is the duty of the trial court to make findings upon each and every material issue, arising upon the pleadings, upon which proof is offered and which in any way affects the judgment entered. (Berlin Machine Works v. Dehlbom Lumber Co., 29 Idaho 494, 160 P. 746.)

The findings of fact made by the trial court upon the issues of conspiracy and connivance were sufficient as to the ultimate facts and decisive of all the material issues. (Hamilton v. Spokane & P. R. R. Co., 3 Idaho 164, 28 P. 408; Fouch v. Bates, 18 Idaho 374, 110 P. 265; Jones v. Vanausdeln, 28 Idaho 743, 156 P. 615; Caseday v. Lindstrom, 44 Ore. 309, 75 P. 222; San Antonio Traction Co. v. Higdon, 58 Tex. Civ. 83, 123 S.W. 732.)

The trial court did not err in finding that plaintiff, his attorneys and alleged agents were not guilty of conspiracy. (Thornton v. Thornton, 67 N.J. Eq. 499, 58 A. 647; Warn v. Warn, 59 N.J. Eq. 642, 45 A. 916; Bateman v. Bateman, 42 App. Cas. (D. C.) 230; Robbins v. Robbins, 140 Mass. 528, 54 Am. Rep. 488, 5 N.E. 837; Wilson v. Wilson, 154 Mass. 194, 26 Am. St. 237, 28 N.E. 167, 12 L. R. A. 524; Pettee v. Pettee, 77 Hun, 595, 28 N.Y.S. 1067; Dilatush v. Dilatush, 86 N.J. Eq. 346, 98 A. 255; Lehman v. Lehman, 78 N.J. Eq. 316, 79 A. 1060; Brown v. Brown, 62 N.J. Eq. 29, 49 A. 589; Reierson v. Reierson, 32 A.D. 62, 52 N.Y.S. 509; Leavitt v. Leavitt, 229 Mass. 196, 118 N.E. 262; Lambert v. Lambert, 165 Iowa 367, 145 N.W. 920; Farwell v. Farwell, 47 Mont. 574, Ann. Cas. 1915C, 78, 133 P. 958; Herriford v. Herriford, 169 Mo.App. 641, 155 S.W. 855.)

Counsel may not, during the progress of a trial, stipulate as to the weight of evidence or as to what the law of the case may be. Any such effort, if made, is not binding upon a litigant, neither will it be recognized by the court. (12 Ency. of Evidence, 99; San Francisco Lumber Co. v. Bibb, 139 Cal. 325, 73 P. 864; Breeze v. Haley, 11 Colo. 351, 18 P. 551; Owen v. Herzihoff, 2 Cal.App. 622, 84 P. 274; 36 Cyc. 1291.)

Harry H. Parsons, Featherstone & Fox and Cannon & Ferris, for Respondent.

Plaintiff was guilty of connivance. (Morrison v. Morrison, 142 Mass. 361, 56 Am. Rep. 688, 8 N.E. 59; Cane v. Cane, 39 N.J. Eq. 148; Derby v. Derby, 21 N.J. Eq. 36; Hedden v. Hedden, 21 N.J. Eq. 61; Noyes v. Noyes, 194 Mass. 20, 120 Am. St. 517, 10 Ann. Cas. 818, 79 N.E. 814; White v. White, 84 N.J. Eq. 512, 95 A. 197; Thornton v. Thornton, 67 N.J. Eq. 499, 58 A. 647; Donohue v. Donohue, 159 Mo.App. 610, 141 S.W. 465; Karger v. Karger, 19 Misc. 236, 44 N.Y.S. 219; May v. May, 108 Iowa 1, 75 Am. St. 202, 78 N.W. 703; Delaney v. Delaney, 71 N.J. Eq. 246, 65 A. 217.)

Wholesale charges of adultery made by plaintiff, none of which were proven, constitute extreme cruelty. (18 L. R. A., N. S., note 303; 34 L. R. A., N. S., note 360; 9 R. C. L., Divorce, 345.)

Plaintiff's conduct was responsible for conditions. (Boeck v. Boeck, 29 Idaho 639, 161 P. 576; Spofford v. Spofford, 18 Idaho 115, 108 P. 1054.)

Plaintiff failed to show he suffered grievous mental suffering. (Donaldson v. Donaldson, 31 Idaho 180, 170 P. 94.)

BUDGE, J. Morgan, C. J., concurs. RICE, J., Dissenting.

OPINION

BUDGE, J.

In this case there are three appeals; first, by James F. Callahan, plaintiff, referred to in this opinion as appellant, second, by Helen Elizabeth Callahan, defendant, referred to herein as respondent, and third, by plaintiff from an order made by the trial judge for services to be rendered by respondent's attorneys on appeal to this court.

Appellant was granted a divorce on the ground of extreme cruelty and denied a divorce on the ground of adultery. The court failed to find respondent guilty of adultery. The findings in this respect are based on substantially conflicting evidence and will not be disturbed.

Appellant's assignment of error, that the court failed to make findings on charges of misconduct attributed to respondent and her senior counsel, Harry H. Parsons, alleged to have occurred at the Florence Hotel, in Missoula, Montana, June 15, 1916, and on the Northern Pacific Missoula-Wallace train in January, 1917, are meritorious. Without commenting on the nature or character of the misconduct testified to, it is apparent that the failure of the court to find on this material testimony left the charges so made against respondent and her senior counsel undisposed of. If the charges are true, the conduct was of such nature that it would constitute additional acts of extreme cruelty, and whether true or false, the fact would be important for the trial court to consider in making a division of the community property. Again, if true, Parsons would not be entitled to any compensation for services rendered, which would be chargeable to appellant. Where counsel for the wife is responsible for acts of extreme cruelty on her part which might be the basis of a divorce on that ground, the injured spouse is not to be called on to respond in attorney fees for services rendered by such counsel in the case. The cause, therefore, will be remanded to the trial court with instructions to make findings of fact and conclusions of law on this issue, from the record before it and without taking any additional evidence in the case.

Appellant assigns as error the action of the court in awarding respondent the sum of $ 50,000 as her share of the community property. Since the cause is being remanded for additional findings on the issue of cruelty above referred to, the trial court may, if it shall see fit, make a new order with respect to the division of the community property, assigning it to the respective parties in such proportions as the court may, from all of the facts heretofore found and to be hereafter found, and the condition of the parties, deem just, as directed by C. S., sec. 4650.

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