Hodges v. Hodges.

• Decision Date: 05 September 1916
• Docket Number: No. 1910.,1910.
• Citation: 159 P. 1007,22 N.M. 192
• Parties: HODGESv.HODGES.
• Court: New Mexico Supreme Court

22 N.M. 192

159 P. 1007

HODGES

v.HODGES.

No. 1910.

Supreme Court of New Mexico.

Sept. 5, 1916.

Syllabus by the Court.

Findings of fact by the trial court, when supported by substantial evidence, will not be disturbed in this court.

Although a finding that the wife was the sole owner of furniture and household goods might not be strictly correct under the proofs, where the court has power to award a division of the common property, such error, if error it was, is not available to the husband.

A motion to reopen a case for further proofs is addressed to the sound discretion of the court, which discretion will not ordinarily be reviewed.

The ecclesiastical law of England in regard to marriage and divorce has never been adopted in its entirety in America. Only such portions thereof as have been formulated into statutes have been adopted, and such statutes form the sole basis of jurisdiction of the courts in this state. There is no power vested by statute in the courts of this state to award a limited divorce, or a legal separation, and hence no such power exists.

Appeal from District Court, Torrance County; E. L. Medler, Judge.

Action by Dorothey May Hodges against W. K. Hodges. From a judgment for plaintiff, defendant appeals. Reversed and remanded in part.

Although a finding that the wife was the sole owner of furniture and household goods might not be strictly correct under the proofs, where the court has power to award a division of the common property, such error, if error it was, is not available to the husband.

F. Faircloth, of Santa Rosa, for appellant.

W. C. Heacock, of Albuquerque, for appellee.

PARKER, J.

This is an action for divorce upon the statutory ground that the defendant failed to support the plaintiff according to his means, station in life, and ability. The defendant answered, denying the allegations of the complaint as to nonsupport, and by way of cross-complaint charged the plaintiff with adultery. The court, upon conflicting evidence, found that the charges of nonsupport set forth in the complaint were proven, and that the charge of adultery in the cross-complaint was not proven, but was false and untrue. The court also found that the defendant was the owner of certain town property and one cow. It also found that the plaintiff was the sole owner of all of the household goods and furniture purchased during the marriage community. The court thereupon decreed, instead of an absolute divorce, a legal separation of the parties; that the defendant was the owner of the real estate and the cow, heretofore mentioned; that the plaintiff was the sole owner of the furniture and household goods purchased during the marriage community; and that the defendant pay all costs of the proceeding, including an attorney's fee of $100. It was further decreed that the plaintiff have the use of said cow and of the house located upon the real property, free of rent, and that the defendant pay $15 per month to the plaintiff for support and alimony. The defendant brings the case here upon appeal.

[1] 1. The first assignment of error is to the effect that the court erred in finding that the charge of adultery was not proven, but was false and untrue. The second assignment is to the effect that the court erred in finding that the charge of nonsupport was proven. These two assignments are disposed of by the well-established rule in this jurisdiction that findings of fact, when supported by substantial evidence, will not be disturbed in this court. An examination of the evidence upon which these two findings were made discloses a sharp conflict between the evidence for the respective parties, and we see no reason to disturb the findings.

[2] 2. The third assignment of error is to the effect that the court erred in finding that the plaintiff is the sole owner of all the furniture and household goods purchased during the marriage community. Laying aside the question as to whether this finding was strictly correct under the proofs, it nevertheless remains true that the court had power to award to the wife a suitable portion of the common property of the community, or the separate property of the husband, and the decree awarding to her the furniture and household goods is to be sustained upon that ground. See section 2778, Code 1915.

[3] 3. The fifth assignment of error is to the effect that the court erred in denying the defendant's motion to reopen the case and hear more testimony. This motion was filed 18 days after the rendition of the decree in the case. A motion to strike the motion from the files was interposed on the same day, on the ground that the defendant had failed, neglected, and refused, up to the date of the filing of his motion, to comply with the decree of the court to pay alimony, attorney's fees, or costs, as in the decree adjudged. The motion to reopen the case was thereupon overruled by the court. We see no objection to the action of the court in this regard. The opening of a decree, or the refusal of the same, is a matter resting in the sound judicial discretion of the trial court, and will not ordinarily be disturbed.

[4] 4. The fourth assignment of error is to the effect that the court erred in decreeing a legal separation of the parties in view of the state of the pleadings. The complaint in the case did not ask, in terms, for a legal separation, but, on the other hand, asked for an absolute divorce. This raises the only point in the case requiring discussion.

A divorce a mensa et thoro originated with the ecclesiastical court of England, and was, in fact, the only form of decree granted by those courts. In those courts the relation of marriage was considered a sacrament, and was not to be dissolved except by order of the Pope. Accordingly, no absolute divorces...