Cassas v. Cassas

• Decision Date: 16 November 1954
• Docket Number: Nos. 2630,2631,s. 2630
• Citation: 276 P.2d 456,73 Wyo. 147,69 A.L.R.2d 187
• Parties: , 69 A.L.R.2d 187 Flora B. CASSAS, Plaintiff and Appellant, v. Ray R. CASSAS, Defendant and Respondent. Flora B. CASSAS, Plaintiff and Appellant, v. Ray R. CASSAS, Defendant and Respondent.
• Court: Wyoming Supreme Court

Page 456

276 P.2d 456

73 Wyo. 147, 69 A.L.R.2d 187

Flora B. CASSAS, Plaintiff and Appellant, v. Ray R. CASSAS, Defendant and Respondent.

Flora B. CASSAS, Plaintiff and Appellant, v. Ray R. CASSAS, Defendant and Respondent.

Nos. 2630, 2631.

Supreme Court of Wyoming.

Nov. 16, 1954.

W. A. Muir, Rock Springs, for appellant.

Albert E. Nelson, Rock Springs, for respondent.

BLUME, Chief Justice.

To set out the voluminous pleadings herein at length would subserve no good purpose, so we shall mention merely the gist of them, incidentally referring to them again in the further discussion of this case.

On June 10, 1952, the plaintiff Flora B. Cassas brought an action for a declaratory judgment against Ray R. Cassas, former husband of the plaintiff, asking that she be declared to be the owner of one-half interest in Lot Nine in Block Eighteen in the Central Coal & Coke Company's Second Addition to the town, now city of Rock Springs, Wyoming together with the improvements thereon. The defendant denying that plaintiff had any interest therein also pleaded the statute of limitations and the statute of frauds and asked for an accounting of rent collected by plaintiff.

On November 17, 1952, plaintiff brought a second action against the defendant. An amended petition was filed on February 28, 1953, in which plaintiff claimed judgment against the defendant for the sum of $7,300, consisting of the following items: $4,550 at the rate of $50 per month for goods bought for the two minor children of plaintiff and defendant, Constance and Carma Cassas; and $2,750 at the rate of $50 per month for taking care of the two minor children, keeping house for them and for collecting rent and keeping the improvements on the above property in repair. An attachment was issued in connection with this cause of action. Defendant denied liability for these items and alleged that in 1948 defendant went to Arizona because of ill health; that when he left he provided for his children with a home and adequate rentals to support them; that plaintiff, without his knowledge and consent, moved into his home and appropriated the rentals. The two actions were consolidated for trial. Judgment in each action was entered in favor of defendant and plaintiff has appealed. We shall consider both actions in this opinion in view of the fact that some of the evidence bears on both cases.

The cases were tried to a jury. The jury returned a general verdict for the defendant in both cases and also answered certain special interrogatories submitted to them. Thereupon the court entered judgments for the defendant, and dissolved the attachment theretofore issued. From those judgments, plaintiff has appealed. Before setting out the special interrogatories and the answers thereto, it will be well to give a brief but general picture of the facts as disclosed by the evidence, in order that these special interrogatories and answers thereto may be better understood.

Plaintiff and defendant were married in 1917 and moved to Rock Springs in this state where defendant obtained a position with the Superior Lumber Company. Six children were born of this union, all girls, one of whom died about 1939. All the others were married at the time of the trial in this case, except one, the youngest one then being about 17 years of age. One of the children who is married lives in California. The other four children live in Rock Springs, and all of them testified on behalf of the defendant. In 1925, a contract was entered into for the purchase of the lot above mentioned. The contract apparently was made between defendant and Mr. Facinelli. The plaintiff had no property of her own, and the lot was paid for out of the earnings of the defendant, although plaintiff testified that part of it--say half of it--was paid for by her individually out of the savings of the money which defendant gave her for the house. A deed to the property was taken in the name of the defendant. It was not recorded until 1937. Plaintiff testified that she always thought that part of the property was hers, although she admitted that at various times, when the parties apparently had some trouble, defendant told her that she did not own the property. In 1926, the parties built a three-room house on the lot in question. Work thereon was done by both plaintiff and defendant and some neighbors and friends. In 1935, the parties commenced the erection of a sevenroom house on the same lot. Work thereon was done by both plaintiff and defendant and neighbors, plaintiff helping in shingling, lathing, painting and other such work. To pay for the lumber, and other items, the parties borrowed the sum of $4,100 from the Sweetwater Savings and Loan Association, giving a note and a mortgage on the property which were signed by both plaintiff and defendant. The payments on the note and the mortgage were apparently made, in the main, from rental of the small house, the amount thereof, was, by 1948, reduced to $3,016.40, and between 1948 to 1951 to the further sum of $2,584.72.

On December 10, 1937, the defendant obtained a divorce from the plaintiff, after personal service was had on the plaintiff. The daughter Lola was at that time 17 years of age; June was 11 years old; Constance was 3 1/2 years old and Carma was 1 1/2 years old. No reference in the decree was made to the property herein involved. The divorce was uncontested. Plaintiff testified that she did not contest the divorce because defendant threatened to kill her if she did. Lola McQuillan, daughter of the parties, however testified that she heard no threats made by defendant; that plaintiff and defendant had quarreled for some time before the divorce was granted because the plaintiff was keeping company with one Lawrence Moss (this was denied by plaintiff); that in May of 1937, plaintiff left her home; that plaintiff told her that she was leaving and would not come back, and to the knowledge of the witness, her father did not tell plaintiff to leave; that a month after plaintiff left she came to the house but did not enter it; that in 1938 she came to the house staying perhaps only an hour; that in 1939 a sister died and plaintiff stayed two nights, and left again; that for two or three years, they (the family) did not know where plaintiff was. Apparently, however, plaintiff was at Rock Springs or thereabouts till 1944, when she went by Vancouver, Washington, working in the shipyards. In 1945, she went to Green River in this state, and worked there until April 1, 1948. During this time she would often come to Rock Springs, go to the home of her eldest daughter and there see her minor children, who, it seems, did not know their mother until that time. On April 1, 1948, she returned to Rock Springs and from then on lived in the premises in controversy, her husband then being in Arizona where he went for his health. She then took charge of the premises, collected rent (apparently up to July 1951) in the sum of $1,932.50, applied the sum of $1,546.26 on the loan against the property, and testified that she paid out $870.56 for repairs on the house, leaving a balance due her of $484.32.

After divorcing plaintiff, defendant continued to live in the premises in controversy and supported his family. In March of 1945, he became crippled with arthritis and was compelled to quit work. He went to Thermopolis to take baths for five or six weeks; came back to Rock Springs and was hospitalized there for a number of months; then went to the Veteran's Hospital at Cheyenne where he was for a year up to October 1946, and then went to Arizona on the advice of physicians because he was so crippled that he could not get out of bed, keeping his 'possessions', however, at his home in Rock Springs. He received a veteran's pension of $60 per month. He sent part of that from time to time to some of the children, but they finally refused to accept any more on account of the fact that he needed it more than they. When he went to Arizona, he left his daughter June in charge of the premises; she collected the rent, made payments on the mortgage and used the remainder, with much of her own money, to support the two minor children. All the older daughters looked after the younger ones. Defendant had told his daughters that their mother was not to return to the house. The minor children were Constance and Carma Cassas. Plaintiff contributed some amount to their support after 1948, but the evidence indicates that most of their support came from their older sisters.

The interrogatories submitted to the jury by the plaintiff in the first of the above actions, together with the answers thereto, are as follows:

'1. Did the plaintiff and defendant, Flora B. Cassas, and Ray R. Cassas, as husband and wife, on or about July 14, 1925, purchase from Victor J. Facinelli of Rock Springs, Wyoming, Lot Numbered Nine (9) in Block Numbered Eighteen (18), in the Central Coal and Coke Company's Second Addition to the Town (now City) of Rock Springs, Sweetwater County, Wyoming, notwithstanding the deed of conveyance contained the name only of defendant, Ray R. Cassas, as grantee?

'Answer No.

'2. Did the plaintiff and defendant both contribute the sum of Two Hundred ($200.00) Dollars, from time to time, and pay the same to Victor J. Facinelli, as the purchase price of said Lot Numbered Nine (9) in Block Numbered Eighteen (18), in the Central Coal and Coke Company's Second Addition to the Town (now City) of Rock Springs, Sweetwater County, Wyoming?

'Answer No.

'3. Do you find from the evidence in this case that it was understood and agreed by and between the plaintiff, Flora B. Cassas, and the defendant, Ray R. Cassas, that they would purchase said Lot Numbered Nine (9) in Block Numbered Eighteen (18), as husband and wife, for the purpose of building a home thereon for themselves and their family?

'Answer Yes.

'4. Do you find from the evidence in this case that prior to the purchase of said lot or real...