Cassan v. Cassan.

• Decision Date: 20 July 1921
• Docket Number: No. 2509.,2509.
• Citation: 199 P. 1010,27 N.M. 256
• Parties: CASSANv.CASSAN.
• Court: New Mexico Supreme Court

27 N.M. 256

199 P. 1010

CASSAN

v.CASSAN.

No. 2509.

Supreme Court of New Mexico.

July 20, 1921.

Syllabus by the Court.

Section 2778, Code 1915, authorizes district courts to award to the wife, in divorce actions, reasonable alimony, in installments or lump sums, independent of which spouse may have been the guilty party, and the action of the court thereunder can be reviewed for abuse of discretion only.

Findings supported by substantial evidence will not be disturbed on appeal.

Appeal from District Court, Colfax County; Leib, Judge.

Action for divorce by Dominick Cassan against Jessie Cassan. From a judgment for plaintiff but allowing defendant alimony, he appeals, and defendant cross-appeals. Affirmed.

Under Code 1915, § 2778, the district court may award alimony where a divorce was granted a husband on account of the fault of his wife, and such action can be reviewed only for abuse of discretion.

Morrow, Merriau & Sadler, of Raton, for appellant.

J. Leahy, of Raton, for appellee.

PARKER, J.

This is an appeal from the district court for Colfax county. The action was brought by Dominick Cassan, the appellant and cross-appellee, against Jessie Cassan for divorce. The complaint alleged that the appellee abandoned and deserted the appellant, that she is addicted to the use of intoxicating liquors to excess, and that she has refused to maintain the relations of wife to the appellant. The answer denied the material allegations of the complaint and by way of cross-complaint alleged that appellant failed to properly clothe and support appellee; that he compelled her to perform manual labor on the ranch of the parties hereto; that he ordered her to leave their home; and that he was constantly filthy and unclean in his person. It was also alleged that the appellee was without property or funds for her support. Issue was made upon the allegations of the cross-complaint, and decree was entered in favor of appellant, dissolving the bonds of matrimony and ordering the appellant to pay $1,350 to appellee “as permanent or lump sum alimony.”

[1] 1. The only proposition advanced by appellant on this appeal concerns the right of the trial court to find the issues of fact in favor of the appellant and at the same time compel him to pay “permanent or lump sum alimony,” the appellant contending that alimony cannot be granted to the guilty spouse. Regardless of precedent in other jurisdictions, the solution of the proposition depends solely upon a construction of section 2778, Code 1915, which provides:

“In any suit for the dissolution of the bonds of matrimony, division of property, disposition of the children, or for alimony, the court * * * may make and enforce * * * such order to restrain the use or disposition of the property of either party, or for the control of the children, or to provide for the support of the wife during the pendency of the suit, as in its or his discretion may seem just and proper; and to make such order, relative to the expenses of the suit, as will insure the wife an efficient preparation and presentation of her case; and, on final hearing,...