Cawley v. Cawley

• Decision Date: 14 November 1921
• Docket Number: 3664
• Court: Utah Supreme Court
• Parties: CAWLEY v. CAWLEY

202 P. 10

59 Utah 80

CAWLEY v. CAWLEY

No. 3664

Supreme Court of Utah

November 14, 1921

Appeal from District Court, Third District, Salt Lake County; J. W Stringfellow, Judge.

Action by John E. Cawley against Eva A. Cawley. Decree for defendant, and plaintiff appeals.

AFFIRMED.

Wm. H Bramel, of Salt Lake City, for appellant.

Frederic C. Loofbourow, of Salt Lake City, for respondent.

FRICK J. CORFMAN, C. J., and WEBER, GIDEON, and THURMAN, JJ., concur.

OPINION

FRICK, J.

The plaintiff commenced this action against the defendant in the district court of Salt Lake county to obtain a divorce from the defendant. The defendant filed her answer, in which she either denied or explained plaintiff's charges against her, and, in a counterclaim, preferred charges against him, which we shall not repeat here, either in whole or in part, and prayed that she be given separate maintenance as provided by our statute.

The district court, after hearing the evidence produced by both sides, in substance found that the charges preferred by the defendant against the plaintiff were sustained; that she was compelled to live separate and apart from her husband entirely through his fault, and that in view that she was averse to being granted a divorce from the plaintiff she should be given the custody and control of her infant child, a girl of the age of 13 months at the time of trial; and that she be awarded separate maintenance for herself and child as contemplated by our statute. The court determined the amount to be paid and the times of payment by plaintiff to the defendant, and also allowed her $ 200 as an attorney's fee. The court, without making specific findings respecting the charges contained in plaintiff's complaint, simply found that the charges were not true, or that they "did not exist," and ordered his complaint dismissed. A decree in favor of the defendant, containing the foregoing provisions, was accordingly entered, from which the plaintiff appeals.

While numerous errors were assigned by plaintiff, yet only a few propositions are argued in his brief. It is seriously contended by plaintiff's counsel that the district court erred in refusing to grant plaintiff a divorce. We have carefully read all of the charges contained in the pleadings, and have not only read but have carefully considered, all of the evidence produced at the trial for and against the charges of both parties. After doing so we are forced to the conclusion that both the plaintiff and defendant seem to be endowed with more than average intelligence, and that the record contains abundant evidence that the defendant is a woman of culture and refinement, possessing strong traits of womanly character, while the plaintiff, although not wholly devoid of culture and refinement, nevertheless falls far below defendant's standard in that regard. He also seems to be afflicted with a quick and uncontrollable temper and with a morose and moody disposition. For obvious reasons we shall refrain from stating the evidence, which abounds with criminations and recriminations. If we undertook to state the evidence we would be compelled to publish many things that would be of no benefit to either bench or bar and could subserve no good purpose whatever. To publish the evidence in this case and make it a permanent record in our official reports could only result in doing an unnecessary thing and one which, in after years might easily become a constant source of regret to both parties and their friends, while benefiting no one. Moreover, we are thoroughly convinced that the defendant did all within her power to prevent the airing of the domestic infelicities of herself and her husband in the courts and thus to keep them from becoming public for all of which she is to be commended. We shall therefore merely state such conclusions as we deem necessary.

It may be that if the defendant had refused to answer plaintiff's numerous charges and had failed to appear in the action, that upon his evidence alone the court might have granted him a decree of divorce. When the defendant came into court, however, and denied plaintiff's accusations and made full explanation respecting the true situation and supplemented her denials and explanations with countercharges which she established by credible evidence at the trial, the district court could not grant the plaintiff the divorce he sought, for the simple reason that he had utterly failed to establish his charges. The court therefore did not err in refusing to grant him a divorce as contended for by counsel.

While upon the other hand, the defendant, by an abundance of evidence, proved that the...