O'Day v. O'Day

• Decision Date: 13 March 1934
• Docket Number: 1825
• Citation: 47 Wyo. 22,30 P.2d 488
• Parties: O'DAY v. O'DAY
• Court: Wyoming Supreme Court

30 P.2d 488

47 Wyo. 22

O'DAY v. O'DAY

No. 1825

Supreme Court of Wyoming

March 13, 1934

APPEAL from the District County, Washakie County; P. W. METZ, Judge.

Divorce suit by Jack O'Day against Ida Holtz O'Day, in which defendant filed a cross-petition. There was a decree of divorce for defendant who appeals from the portion thereof relating to a division of property of the parties.

Modified and Affirmed.

For the defendant and appellant, there was a brief and oral argument by C. H. Harkins of Worland.

In granting a divorce, the statute requires the court to make such disposition of the property of the parties, as shall appear just and equitable. 35-118, R. S. 1931. In making such division, the court should consider the character and conduct of the parties, and the manner in which they will be affected by the property division. In this case, it was clearly established that plaintiff was an adventurer; that he was married under an assumed name; that he was a person of bad character, and a divorce was awarded defendant on the grounds of extreme cruelty. The decree awarding a joint interest to the parties in certain of the property leaves defendant in destitute circumstances. The property was acquired by defendant prior to marriage; under this decree, she received no alimony and loses the income she had prior to marriage to plaintiff. By giving part of her income to plaintiff, the court decreed alimony to him, and it is submitted that the decree is not just and equitable. The payments made by plaintiff after marriage were derived from illicit liquor sales, in violation of the law, and cannot be made the basis of an action. 1 C. J. 957. The division of property was predicated upon an alleged contract between the parties which was within the Statute of Frauds. Mecum v Metz, 30 Wyo. 495, 32 Wyo. 8. The court should have awarded all of the property to defendant and cross-petitioner. Markowski v. Markowski (Wash.) 87 P. 914; 19 C. J. 334; Nave v. Nave (Cal.) 169 P 253; Strozynski v. Strozynski (Cal.) 31 P. 1130; White v. White (Cal.) 24 P. 996; Miller v. Miller (Wash.) 80 P. 816. The judgment should be modified and all of the property awarded to defendant.

For the plaintiff and respondent, there was a brief by C. A. Zaring of Basin.

The respondent completed the payments on two land contracts, and paid $ 1,097.00 on one, and $ 503.80 on the other. He paid $ 1,764.00 for the automobile that he gave to appellant. These payments are admitted, but it is contended that respondent made the money out of his bootlegging business. As the bootlegging transactions were carried on in her home, she is in no position to raise the question as to the origin of the money. It is true that respondent failed to prove the allegations of his petition with respect to their agreement made before marriage, that he should have one-half of the property if he would complete the deferred payments on the contracts, but regardless of such failure of proof, the court in its discretion, had a right to award respondent one-half of the property, by reason of the fact that he completed the payments on the two contracts of sale. It is conceded by appellant, that the net value of the property is $ 440.00. Assuming this to be correct, the undivided one-half interest awarded to respondent is of the value of $ 220.00. In view of the fact that respondent paid $ 1500.80 to complete the payments, and that the net value of one-half of the property is now only $ 220.00, there would seem to be no merit in the contention of appellant that the award was contrary to the evidence and the judgment should be affirmed.

RINER, Justice. KIMBALL, Ch. J., and BLUME, J. , concur.

OPINION

RINER, Justice.

The District Court of Washakie County granted the defendant and appellant, Ida Holtz O'Day, a decree of divorce from the plaintiff and respondent, Jack O'Day, the relief being awarded upon her cross petition charging extreme cruelty. The decree also set over to her, as against him, all the personal and real property in which these parties held or claimed an interest, except Lot 6 in Block 6, First Addition to the Town of Worland, and Lot 7 and the East 2 feet of Lot 8 in said block, wherein each was adjudged "an undivided one-half interest in the equity of said parties" in said premises. The appellant urges that the trial court committed error in assigning to the plaintiff any interest whatsoever in this property and this is the only question which we are asked to consider.

The parties were married January 4, 1930, at Red Lodge, Montana, and lived together as man and wife about two years and four months. They had no children. Both parties appear to have engaged in a business enterprise of rather questionable character, to-wit, bootlegging. During that time, as plaintiff testified, he earned and paid on account of the purchase price of the property, aforesaid, together with the accrued interest thereon, the sum of $ 1,593.92. Concerning this matter, the defendant, as a witness in her own behalf, on cross-examination, stated in response to the question, "Well, you have heard the testimony as to these various amounts of cash that were paid out; that money came from your joint efforts, did it not?" that "I had money when he came then and if we didn't make enough to pay the payments why I had to take it out of what I had."

Sec. 35-118 Wyo. Rev. St. 1931, provides:

"In granting a divorce, the court shall also make such disposition of the property of the parties, as shall appear just and equitable, having regard to the respective merits of the parties and to the condition in which they will be left by such divorce, and to the party through whom the property was acquired, and to the burden imposed upon it, for the benefit of the wife and children, and the court may also decree to the wife reasonable alimony out of the estate of the husband having regard for his ability, and to effectuate the purposes aforesaid, may order so much of his real estate or the rents and profits thereof, as is necessary to be assigned and set out to the wife for life, or may decree a specific sum to be paid by him to her, and use all necessary...