Housman v. Housman

• Decision Date: 20 September 1929
• Docket Number: 6489.
• Citation: 226 N.W. 755,55 S.D. 548
• Parties: HOUSMAN v. HOUSMAN.
• Court: South Dakota Supreme Court

226 N.W. 755

55 S.D. 548

HOUSMAN v. HOUSMAN.

No. 6489.

Supreme Court of South Dakota

September 20, 1929

Appeal from Circuit Court, Beadle County; Alva E. Taylor, Judge.

Suit for divorce by Agnes S. Housman against Roy Housman, in which defendant filed a cross-complaint. From the decree granting defendant a divorce and custody of the children, and adjudging the homestead to be the sole property of the children, and from an order denying a new trial, plaintiff appeals. Affirmed.

Byrnes & Markey, of Huron, for appellant.

W. C Peterson, J. T. McCullen, Jr., and Null & Royhl, all of Huron, for respondent.

MISER C.

Appellant sued respondent for divorce, alimony, custody of their four children, then aged 12, 11, 5, and 3 years, and for the possession of the family homestead. In respondent's answer and cross-complaint, he asked for divorce, for the custody of the children, and that the homestead be preserved to the use of the children as a home. After a trial, in which the parties and a number of other witnesses testified in detail to the marital troubles of the parties for the previous eight years, the trial court granted to respondent a divorce, and, until further order of the court, the custody and control of the children, then aged 14, 13, 7, and 5 years. It allowed appellant no alimony, nor suit money except that respondent was required to pay the suit money and temporary alimony theretofore ordered. No useful purpose would be served by a recital of the evidence. It has been reviewed, and the conflict in it noted. With reference to the question of divorce, alimony, and custody of the children in the case at bar, the following statement of the court in Habeck v. Habeck, 51 S.D. 455, 214 N.W. 846, 847, is peculiarly applicable: "The judge of the trial court had the parties before him and heard the witnesses testify and he had better opportunity than this court to determine the weight to be given to the evidence submitted. Where there is a conflict of evidence, and no clear preponderance of evidence against the findings of the trial court, its findings will not be disturbed by this court."

The disposition of the homestead presents a more difficult question. The court found that both appellant and respondent were able-bodied, and each capable of earning a living; that neither appellant nor respondent had any property, real or personal, except that appellant held the legal title to the homestead; that, for the proper support of the four children this homestead should be decreed to be the sole property of the children; that such transfer was made urgent and advisable because of the foreclosure of a real estate mortgage then a lien on said homestead, and because both appellant and respondent had judgment liens of record in large sums against them.

The court specifically found as follows: "That for the preservation of the property it is necessary that the same be transferred to said children, and for the preservation of the best interests of said children, and to insure the said children a home and abode; that this transfer is made pursuant to the statute and is made absolute and in fee simple, and without any further right or title in and to the plaintiff or the defendant." The court also found that respondent was the innocent party, within the definition and purview of section 166, R. C. 1919, and that respondent, as such innocent party, had in open court consented that the family homestead should be adjudicated to the children, as provided in said findings.

Section 166, R. C. 1919, is in part as follows: "The court, in rendering a decree of divorce, may assign the homestead to the innocent party, either absolutely or for...