Greener v. Greener

• Decision Date: 02 December 1949
• Docket Number: 7265
• Citation: 116 Utah 571,212 P.2d 194
• Court: Utah Supreme Court
• Parties: GREENER v. GREENER et al

212 P.2d 194

116 Utah 571

GREENER v. GREENER et al

No. 7265

Supreme Court of Utah

December 2, 1949

Sandgren & Blackham, Provo, for appellant.

Arnold C. Roylance, Springville, Elmer L. Terry, Provo, for respondent.

Wolfe Justice. Pratt, C.J., and Latimer and McDonough, JJ., concur. Wade, Justice (concurring).

OPINION

Wolfe Justice.

Appeal by the plaintiff, Amy Elizabeth McKee Ostler Greener, from a decree of the Fourth District Court denying her a divorce from the defendant, Thomas Richardson Greener, and declaring that she had no interest in a fund of $ 19,879.27 held on deposit in the name of the co-defendant, James Aften Greener.

The two defendants are father and son. Plaintiff was married to Thomas R. Greener on October 2, 1946, when she was 65 and he was 79 years old. Each had been married previously, raised families to maturity, and had been widowed. Thomas owned at the time of his marriage to the plaintiff real and personal property of aggregate value approximately $ 30,000, represented by a homestead, some United States Bonds, and savings accounts in various banks. The bulk of his assets was in the form of savings deposits.

The marriage was not accepted with enthusiasm by the children of Thomas, and before the end of the year the parties had agreed to have plaintiff seek a divorce. It was difficult to find grounds, but on December 19, 1946, Mrs. Greener obtained an interlocutory decree based upon the impotency of Thomas. In connection with that action the defendant paid to the plaintiff $ 2000 as a property settlement. The separation, however, was as short-lived as the prior felicity and the parties were reconciled. On April 3, 1947, within the interlocutory period, the Fourth District Court, on petition of both parties, set aside the decree of divorce.

The resumed marriage was apparently more successful than it had been originally, but there were some misunderstandings and bickering. Matters were brought to a head in December, 1947, when the plaintiff made a trip to California to visit her children. While she was away Thomas withdrew from various savings banks the funds which had theretofore existed in the joint names of himself and plaintiff and made a gift of the money to James Aften Greener. The total amount of the transfer was almost $ 20,000. With the exception of his real estate and approximately $ 200 in bonds, Thomas thus divested himself of all his assets. However, it was not shown that he thereby disabled himself from supporting plaintiff, nor that he thereafter failed to support her.

Plaintiff, after hearing that Thomas had withdrawn the money from the joint savings accounts, brought this action for divorce and for setting aside, to the extent of her claimed interests, the transfer of said accounts to his son, Aften.

The complaint for divorce is founded upon the ground of cruelty, specific acts of cruelty being alleged as follows: That the defendant

"has been stingy, mercenary, and niggardly in his dealings with the plaintiff doling out to her sums for specific purchases and requiring her to account for and return to him any change therefrom; * * * that he falsely accused the plaintiff on diverse occasions of robbing him of the sum of $ 2000 and has frequently quarreled with plaintiff over said sum; and that on one occasion since her return from California and during a quarrel, defendant * * * threatened the plaintiff saying 'he might get desperate' and thereupon took a knife and with the blunt edge thereof drew it across the throat of the plaintiff and thrust it at her over her heart; that since the plaintiff's return from California, the defendant has continually quarreled with her and on one occasion told plaintiff that 'you can stay right here and I'll feed you or you can get out.'"

Also embodied in the allegations of cruelty was the statement that

"while she was on said trip [to California] the said defendant, for the purpose of defrauding the plaintiff of any and all her interest, right and title in and to the sums in joint accounts herein referred to and with the intent and purpose of preventing the plaintiff from receiving any support and maintenance from him, the defendant did, on or about the 22d day of December, 1947, transfer from the said joint account of himself and plaintiff the entire sums on deposit therein of a total in excess of $ 18,000 to his son, the defendant, James Aften Greener."

The plaintiff alone testified as to the acts of cruelty alleged in the complaint. The defendant testified that he made no threat against the plaintiff and that he had supplied her with everything she needed.

The court found that there was no knife-wielding incident or other acts of violence on the part of the defendant.

The court further found that the defendant did not

"at any time do any act or fail to do any act which he should have done which could have caused the plaintiff mental anguish or bodily suffering,"

and that he had not denied to her any of the necessities of life or her requested personal needs.

As we have held many times in actions involving divorce, where there is a conflict of testimony the findings of the trial court on material issues should be upheld unless they are clearly against the preponderance of the evidence. Porter v. Porter, 109 Utah 444, 166 P. 2d 516; Schuster v. Schuster, 88 Utah 257, 53 P. 2d 428; Steed v. Steed, 54 Utah 244, 181 P. 445; and see concurring opinion in Johnson v. Johnson, 107 Utah 147, 152 P. 2d 426. Even though the record shows apparent inconsistencies in the testimony of parties, the trial court, having the witness before it, is in a better position than are we to ascertain whether these inconsistencies are more apparent than real as viewed in the light of the total testimony, and to determine whether contradictions are the result of a poor mode of expression, faulty memory, misunderstanding or self interest rather than untruthfulness.

It is further contended that the trial court erred in finding that the defendant was willing to resume marital relations. While it is true that where sufficient grounds are proved the trial court may well conclude that an elderly couple who have wed late in life and who seemingly cannot live peaceably together should be granted a divorce, the refusal of the trial court to do so cannot be overturned unless that court has abused its discretion by denying the divorce when the evidence demands that it should have been granted. The fact that the parties do not care to live together is not, per se, a reason for the granting of a divorce, though it might be a reason for their living apart and may be a sufficient basis for an action for separate maintenance. As it was said in Hyrup v. Hyrup, 66 Utah 580, 245 P. 335, 338, "it is not enough that they both desire a divorce or refuse to live with each other. Courts are not authorized to grant divorces except for the particular causes prescribed by law, and then only when the grounds or cause for divorce is proved by substantial and satisfactory evidence."

Nor is Lundgreen v. Lundgreen, 112 Utah 31, 184 P. 2d 670, cited by plaintiff, to the contrary. That case points up once again the broad discretion vested in the trial court as to the propriety of granting or refusing a divorce.

Plaintiff next assigns as error the refusal of the trial court to find that she had an interest in the savings accounts transferred to James Aften Greener, and to set the transfer aside, as fraudulent, to the extent of her claimed interest therein.

This assignment of error is based on two contentions, the first being that the plaintiff acquired, by operation of law, because of the marriage, rights in the personal property of her husband. The second contention is that she became a true "joint owner" of the deposits because of the agreements signed by the parties when the accounts were transferred to their joint names.

Answering the first contention: In this state a wife has only such rights in the property of her husband as are given by statute. The husband is otherwise complete owner and may dispose of his property as he desires, either by will or inter vivos, to the exclusion of his spouse. In Utah the rights of the wife are confined to a homestead interest and "statutory dower," i. e., one-third interest in the husband's real property. The New York cases cited by appellant represent local interpretation of a peculiar decedent estate statute and for that reason are without weight in the instant case. See Leach, Cases on Wills, 2d Ed., p. 19. Our legislature has not seen fit to give a wife such incidents of marriage as plaintiff asserts.

The second contention that the agreements in this case made in joint form with rights of survivorship were intended to accomplish in fact the legal import of such agreements, to wit, vest in each party the present ownership of one-half of the account, iscountered by the contention that the parties did not so intend.

The primary question as to the passing of any interest has been often litigated in this and other jurisdictions and it is generally held that an account transferred by the owner to the names of himself and another may become the "joint property" of both with at least some of the incidents of a joint tenancey in real property. Holman v. Deseret Savings Bank, 41 Utah 340, 124 P. 765. Most of these cases involved actions between a surviving cotenant and representatives of the deceased depositor and where the survivor prevailed it was because the court determined that an interest had passed anterior to the death of one of the joint owners. To have found that the interest passed at the time of the death would have been to validate the attempted transfer as a testamentary disposition without the statutory formalities...