Dahlberg v. Dahlberg

• Decision Date: 09 October 1930
• Docket Number: 4908
• Citation: 292 P. 214,77 Utah 157
• Court: Utah Supreme Court
• Parties: DAHLBERG v. DAHLBERG

292 P. 214

77 Utah 157

DAHLBERG v. DAHLBERG

No. 4908

Supreme Court of Utah

October 9, 1930

Appeal from District Court, Third District, Salt Lake County; R. I McDonough, Judge.

Action for divorce by Ida Dahlberg against Charles Dahlberg. Judgment for plaintiff for part of relief claimed, and plaintiff appeals.

REMANDED, with directions to modify judgment as indicated.

E. A Rogers and A. A. Duncan, both of Salt Lake City, for appellant.

J. M Carlson, of Salt Lake City, for respondent.

STRAUP, J. ELIAS HANSEN and FOLLAND, JJ., concur. CHERRY, C. J., EPHRAIM HANSON, J. dissenting.

OPINION

STRAUP, J.

This action was one for a divorce. On a trial of the case a judgment was rendered in favor of the plaintiff on the ground of cruelty. She appeals from that part of the judgment relating to the division of the property and alimony for her support. The appeal is on the judgment roll without a bill of exceptions. There is thus before us only the pleadings, the findings, and the judgment. The contention is that upon the findings as made what was awarded the plaintiff was not adequate or equitable.

The findings, so far as material, are that the parties, both residents of Salt Lake county, Utah, were married in November, 1901, and ever since and until the commencement of this action in October, 1928, lived together as husband and wife; four children were born to them, the issue of the marriage, two sons of the ages of 26 and 24 years and two daughters of the ages of 21 and 19 years, the older son and the younger daughter residing with the plaintiff and the defendant when the action was commenced; the older daughter theretofore just recently married. The court further found: "That for more than ten years last past the defendant has been and still is guilty of cruel treatment of the plaintiff to the extent of causing her bodily injury and great mental distress, and more particularly as follows: That the defendant has a violent and ungovernable temper, and during all of said time has habitually and persistently abused the plaintiff by calling her vile names and addressing her with profane and indecent language and in an insulting and insolent manner; that the defendant during all of said time has manifested by his actions and his words the greatest hatred of the plaintiff and has told her repeatedly that he hated her; that the said abuse of the plaintiff by the defendant has been in the presence of the children and in the presence of others and has caused her and still causes her great humiliation and mental distress and has injured her health to such an extent that she is now on the verge of a nervous breakdown; that the constant abuse of the plaintiff by the defendant is such that it is impossible for them to continue to live together as husband and wife."

The court also found that the defendant was the owner of a described tract of land consisting of about seven and one-half acres, located in Salt Lake County, approximately one-half thereof being in an orchard and on which is located a dwelling in which the parties resided, a barn, chicken coop, and other outbuildings; and which, together with the improvements, was of the value of $ 6,000; that the real estate was acquired in 1902 at which time there was no orchard and only a small frame house on the real estate; that later one-half of the land was planted in an orchard and a modern six-room brick residence constructed upon it and which was completely furnished; that the plaintiff resided on the property continuously from the time it was acquired, and "by her efforts as a wife of the defendant and by her work upon said property aided the defendant in the acquisition and development and improvement of the same"; that the defendant also was the owner of a "Ford truck, Model 1921, a Ford sedan, Model 1923, a radio of the value of $ 150, a cow, 170 chickens, 4 tons of hay, 1 horse, 1 pig, 20 rabbits, a piano, a victrola and a washing machine"; that the plaintiff was 53 years of age, in very poor health and unable to do any work, except the lightest kind of house work; and had no property or income of her own; that the defendant was 57 years of age and "in good, strong bodily health"; that the defendant was absent from the state during the years 1923 and 1924, spent three months in Europe and the rest of such period worked in and around the city of Chicago, and during all of such period "contributed nothing to the plaintiff."

The court further found and stated as conclusions of law "that the plaintiff was entitled to a decree of divorce; that $ 2,000 was a reasonable sum to be paid to the plaintiff in settlement of her property rights and that $ 10 per month was a reasonable sum to be paid in addition thereto by the defendant to the plaintiff for support money, and that a reasonable amount of the personal property to be awarded the plaintiff was the sedan, the piano, the victrola, the washing machine, the bed room set of the plaintiff with the necessary bedding, one-half of the table ware, one-half of the dishes and one-half of the table linen;" that $ 200 was a reasonable attorney's fee to be awarded plaintiff and to be paid by the defendant; that the defendant was permitted to mortgage the real estate to raise the $ 2,000 to be paid by him.

A decree was entered accordingly decreeing the real estate together with all the improvements thereon to the defendant in fee simple; that the defendant was authorized to mortgage the real estate for $ 2,000 with which to pay the plaintiff, and adjudged that the alimony awarded in the sum of $ 10 a month be a lien on the real estate subject to the mortgage of $ 2,000. The decree was entered in May, 1929. The $ 2,000 was to be paid June 10, 1929.

It is the contention of the plaintiff that, in view that the parties had been married and lived together for more than a quarter of a century, reared a family, acquired all of the property possessed by them through their joint efforts, that all of the real estate and personal property possessed by them, though held in the name of the defendant, was just as much her property as that of her husband, that the real estate and the dwelling on it constituting their homestead, that she was in ill health and unable to do any kind of work except the lightest house work and had no property or income of her own, the defendant in good health, the divorce granted plaintiff on the ground of cruelty impairing her health and rendering it impossible for the plaintiff longer to live with the defendant, an equitable division of the property required that she be awarded at least one-half of the value of the joint property; and that she was not awarded such a proportion of it, but in effect was given only about one-third thereof.

In opposition to that it is the contention of the defendant that as a general rule in divorce cases only about one-third of the husband's property is awarded to the wife; and that, where an award or allowance has been made by the trial court, it on appeal will not be disturbed, except on a showing of a gross abuse of discretion, or that the allowance was "grossly excessive or grossly inadequate," which, as contended by the defendant, is not here shown. To support that, the defendant cites and relies on Griffin v. Griffin, 18 Utah 98, 55 P. 84; Blair v. Blair, 40 Utah 306, 121 P. 19, 38 L.R.A. (N.S ) 269, Ann. Cas. 1914D, 989; and Cawley v. Cawley, 59 Utah 80, 202 P. 10.

Such stated rule is disputed by the plaintiff, who urges that the kind of division or the amount of an allowance to be made is dependent upon the facts, circumstances, and conditions of each particular case, and, if upon a consideration of them the division or allowance as made by the court below is inequitable or unjust, this court is justified, and it is its duty to interfere, and that, to do so, it is not essential to show an abuse of discretion in the court below, that it is enough, if upon the record presented that the court below erred in making the division or allowance and that equity and justice require an interference and a modification thereof. To support that, the plaintiff cites and relies on Read v. Read, 28 Utah 297, 78 P. 675; Pinney v. Pinney, 66 Utah 612, 245 P. 329; Stewart v. Stewart, 66 Utah 366, 242 P. 947; Jensen v. Jensen (Utah) 72 Utah 189, 269 P. 485; Bullen v. Bullen (Utah) 71 Utah 63, 262 P. 292; Decker v. Decker, 279 Ill. 300, 116 N.E. 688, 692; Van Gordor v. Van Gordor, 54 Colo. 57, 129 P. 226, 227, 44 L.R.A. (N.S ) 998; Kennard v. Kennard, 81 N.H. 509, 129 A. 725; and Hooper v. Hooper, 102 Wis. 598, 78 N.W. 753, 44 L.R.A. 725.

We think the rule contended for by the plaintiff is the correct rule, and is in line with the later cases from this jurisdiction. Of course, the rights and equities of both parties are to be considered, but, whatever doubt there may be concerning the matter, it ought to be resolved against the guilty party whose fault and wrongs and breaches of the marital relation destroyed the home and forced or brought about the separation.

In Decker v. Decker, supra, the court said:

"It is also a rule of equity in such cases that the wife shall not be put in a worse condition by reason of her marriage, the dissolution of which has been caused by her husband's willful misconduct. 'Equity and good conscience require that the husband shall not profit by his own wrong, and that restitution shall be made to the wife of the property which she brought to the husband, or a suitable sum in lieu thereof be allowed out of his estate, so far as may be done consistently with the preservation of the rights of each, and also that a fair division shall be made, taking into consideration the relative wants, circumstances and necessities of each, of the property accumulated by...