Izatt v. Izatt, 16882
| Decision Date | 03 March 1981 |
| Docket Number | No. 16882,16882 |
| Citation | 627 P.2d 49 |
| Parties | Joel H. IZATT, Plaintiff, Respondent and Cross-Appellant, v. Mary C. IZATT, by and through her Guardian and Conservator, Kenneth G. Clark, Defendant, Appellant and Cross-Respondent. |
| Court | Utah Supreme Court |
Rex J. Hanson, Salt Lake City, for defendant, appellant and cross-respondent.
Gordon A. Madsen, Robert C. Cummings, Salt Lake City, for plaintiff, respondent and cross-appellant.
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Defendant Mary C. Izatt (by her guardian) appeals attacking a divorce decree as unjust and inequitable; and plaintiff Joel H. Izatt cross-appeals.
The parties had been married for 16 years and have 4 minor children. They appear to have had a normal and happy family life until May of 1973 when it became necessary for the defendant Mary to undergo surgery. Sparing details not material here, difficulties were encountered which included the fact that she suffered two massive cardiac arrests; and as a result of a malpractice suit, finally obtained two settlements netting her $97,000. Unfortunately, however, she suffered radical changes in her attitudes and personality which appear to have brought on the disharmony and disruptions which resulted in this divorce proceeding.
The defendant's first contention is that the finding that she caused mental cruelty to the plaintiff was improper, because she did not intentionally cause him any harm. She raises no issue as to the propriety of severance of the marriage. She herself stated that she wanted a divorce; and her counsel told the court that "it appears that a divorce will have to be granted." It seems to be a matter of pride and emotional solace to the defendant that the divorce should have been granted to herself, but not to the plaintiff.
In determining whether the granting of a divorce on the ground of mental cruelty is justified, the actor's intent is indeed an element to be considered. But the question of controlling importance is whether the spouse's conduct, whether so intended or not, had the effect of inflicting mental cruelty upon the other to such an extent that the trial court is convinced that the marriage has failed and should be dissolved. 1
There was a trial of two days in which considerable testimony was given as to the parties' respective faults and misdoings and the effect they had on each other. We see no useful purpose to be served by detailing the evidence here. It is sufficient to say that there is a reasonable basis therein to justify the trial court's finding that the conduct of each of the parties resulted in mental cruelty to the other and the granting of a divorce to each of them on that ground. 2
The matter of principal concern here is the defendant's charge that the adjudication as to the property and financial affairs of the parties is so inequitable that it manifests an abuse of discretion which should be corrected. Subsequent to the trial, the court devoted considerable effort and attention in analyzing proposals of the parties. The decree as finally fashioned awarded to the plaintiff the custody of the four minor children with the sole obligation to support them, the family home, the furniture, and the family car. The savings and checking account balances were also awarded to him and he was ordered to assume and pay outstanding family debts amounting to $7,300k.
The defendant was awarded personal property, and her jewelry of value of $4,000; the $97,000k she had received for her injuries; the sum of $13,500 which was made a lien upon the home, to be paid to her upon the happening of one of these: 1) plaintiff sells the home or 2) ceases to use it as a home for himself or the children, or 3) the youngest child reaches majority. Defendant was also awarded alimony of $1.00 per year. The decree further requires that the defendant make available the sum of $5,125 for repayment to the plaintiff's parents of one-half of $10,250 which they had advanced to the parties during the defendant's illness.
Defendant makes the argument that the $97,000 settlement is exclusively her separate property, and that the court could not properly require her to apply any part of it to pay the debt to plaintiff's parents. She places reliance on Sec. 30-2-1, U.C.A. 1953, which states that:
Real and personal estate of every female acquired before marriage, and all property to which she may afterwards become entitled by purchase, gift, grant, inheritance, bequest or devise, shall be and remain the estate and property of such female, and shall not be liable for the debts, obligations or engagements of her husband and may be conveyed, devised or bequeathed by her as if she were unmarried. (Emphasis added.)
She also cites Sec. 30-2-4, which similarly gives a wife the right to recover against third persons for injuries to her.
Consistent with those statutes, the fact that the $97,000 belongs to defendant is not to be doubted. Nevertheless, the fact that she possesses that asset is one of the total circumstances the court could consider in making what he regards as a just and practical allocation of the property and finances of the parties.
After the misfortunes of defendant's illness and surgery, she was so disabled physically and mentally that she could not function, did not even know her own children. It appears that she has been in the process of slowly recovering. It was necessary for plaintiff's parents to come into the home and help. Sparing...
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