Gust v. Gust

• Decision Date: 07 March 1914
• Citation: 139 P. 228,78 Wash. 414
• Court: Washington Supreme Court
• Parties: GUST v. GUST et al.

139 P. 228

78 Wash. 414

GUST v. GUST et al.

Supreme Court of Washington

March 7, 1914

Department 2.Appeal from Superior Court, King County; John E Humphries, Judge.

Action by Sarah A. Gust against A. A. Gust and others.From a judgment for plaintiff, defendants appeal.Modified and remanded, with instructions.

Brady & Rummens and G. W. Saulsberry, all of Seattle, for appellants.

Edward Judd, of Seattle, and B. E. McGregor, of Prosser, for respondent.

MOUNT J.

Action for divorce on the ground of adultery.This is the second appeal of this case upon the merits.At the former trial in the court below, the trial court was of the opinion that the plaintiff had failed to sustain the charges of adultery that she had made against her husband.In considering that question upon the former appeal we said: '* * * If the evidence offered on behalf of appellant is accepted as true there can be no doubt of the commission of the acts complained of.'Upon the trial the defendant Gust offered no evidence.We reversed the cause, and it was remanded to the lower court for further proceedings.SeeGust v Gust,70 Wash. 695, 127 P. 292.At the time the original action was begun, a list of real property alleged to belong to the defendantA. A. Gust was attached to the complaint and at the same time notices of lis pendens were filed in different counties in the state where portions of the property were located.After the action had been reversed in this court and remanded for further proceedings, the plaintiff filed a supplemental complaint, in which she alleged that, pending the litigation, Pauline Miller had sought to get an interest in the property, and had obtained judgments against the defendantA. A. Gust; that he was allowing mortgages to be foreclosed, taxes and assessments to become delinquent upon his property, and that the same would be dissipated and wasted unless a receiver was appointed to marshal the assets.Pauline Miller and George W. Saulsberry were named as defendants in the action.These defendants filed answers to the supplemental complaint.The defendantPauline Miller alleged in her answer that she had obtained two judgments against the defendantA. A. Gust, one for $27,925 in June, 1912, and the other for $5,092.50 on November 15, 1912, and that these were valid and subsisting judgments and prior liens against the property of A. A. Gust and wife.The cause came on for trial in July, 1913, and at the conclusion of the trial the court found that the defendantA. A. Gust had been guilty of adultery on the 23d day of August, 1911, and on the 25th day of November, 1911, and frequently since the commencement of this action, but that the times and places thereof do not appear in the evidence, and that the offenses were unforgiven by the plaintiff.The court also found that A. A. Gust was the owner of a long list of property; that after the commencement of this action the defendantPauline Miller obtained two judgments against the defendantA. A. Gust, one for $27,925, and the other for $5,092.50; 'that said two jdugments above mentioned are valid and existing claims against the defendantAdolph A. Gust individually and personally;' that both of the judgments were obtained after the filing of notices of lis pendens; that Pauline Miller, in addition to the constructive notice by the lis pendens aforesaid, also had actual knowledge of the pendency of this action, the nature of the same, and the property rights claimed by the plaintiff; that the rights acquired by Pauline Miller under and by virtue of the two judgments were inferior to and subject to all the property rights which were awarded to the plaintiff.

The court, after finding that A. A. Gust and Pauline Miller had attempted to conceal and cover up the property of the defendantA. A. Gust, then found that the plaintiff had obligated herself in the sum of $3,000 for attorney's fees and suit money, and that 'the sum of $5,000 is a proper and legal charge as attorney's fees to be allowed to the plaintiff as against the defendantAdolph A. Gust and his property.'The court thereupon awarded the plaintiff one-half of all the property of A. A. Gust, and ordered a receiver appointed to take charge of all the property, marshal the assets and liabilities, and to dispose of such portion of the property as might be necessary to protect the interests of the parties to the action.Thereupon the court entered a decree divorcing the plaintiff from the defendantA. A. Gust, authorizing the plaintiff to resume her maiden name, and directing that the defendantA. A. Gust should, within three days, pay into the registry of the court the sum of $3,000 as suit money, and the sum of $5,000 as attorney's fees, and ordered set off to the plaintiff, for her maintenance, support, and alimony, one-half of all the property of the defendantA. A. Gust, at the time of the entry of the decree.The court also adjudged that the claims of the defendantPauline Miller, based upon her judgments for $27,925 and costs, and for $5,092.50 and costs, were subject to the amounts and allowances decreed to the plaintiff, and were made a charge upon and payable out of the interest of A. A. Gust in his property, after deducting the amounts and allowances to the plaintiff.Thereupon the court appointed one H. B. Martin as receiver of all the real and personal property of the defendantA. A. Gust, and ordered that within three days from the entry of the decree he turn over and deliver to the receiver all deeds, conveyances, and abstracts of title, and also all real estate, contracts, notes, mortgages, money, bank deposits, and other personal property of which he was the owner.It was further ordered that the receiver take possession of all the property and hold the same subject to the further order of the court.The defendantA. A. Gust appeals from the whole of the judgment.The defendantPauline Miller appeals from that part of the judgment which decreed that her judgments were subject to the allowances to the plaintiff, and from that part of the judgment appointing a receiver and ordering the receiver to take charge of the property.

The principal argument of the appellants is that the evidence fails to show adultery.At the time the cause was here upon the former appeal, we were of the opinion, as stated, that if the evidence offered on behalf of the appellant was accepted as true, the respondentA. A. Gust was guilty of adultery.Upon the trial of this case the evidence was substantially the same as upon the former trial.The appellantA. A. Gust denied that he had committed adultery since his marriage to the respondent, and his evidence tended strongly to show that he had not committed adultery; that the principal witnesses of the respondent were unworthy of belief; and that he had no opportunities to commit adultery as charged.If the trial court had found in favor of the appellantA. A. Gust upon this issue, we would unhesitatingly affirm the judgment.As the case stands before us now, there is evidence in the record which, if true, tends strongly to sustain the finding.The whole case upon this question depends upon whether the witnesses for the respondent shall be believed, or whether their statements should be disregarded.In this view of the matter we are inclined to sustain the finding of the lower court.

We are satisfied that the trial court erred in concluding that the judgments...