Johnson v. Johnson

• Decision Date: 01 March 1960
• Docket Number: No. 9936,9936
• Citation: 349 P.2d 310,137 Mont. 11
• Parties: Robert T. JOHNSON, Plaintiff and Appellant, v. Louise JOHNSON, Defendant and Respondent.
• Court: Montana Supreme Court

Page 310

349 P.2d 310

137 Mont. 11

Robert T. JOHNSON, Plaintiff and Appellant, v. Louise JOHNSON, Defendant and Respondent.

No. 9936.

Supreme Court of Montana.

Submitted Dec. 3, 1959.

Decided Jan. 27, 1960.

Rehearing Denied March 1, 1960.

F. N. Hamman, Donald E. Gottwig, J. A. Turnage, Polson, for appellant.

Raymond Gray, Missoula, for respondent.

ANGSTMAN, Justice.

This is an appeal by plaintiff from a part of a judgment entered on December 17, 1957, wherein plaintiff was granted an absolute divorce from defendant wife and was ordered to pay her $1,600 in $100 monthly installments. The appeal is from that part of the judgment requiring plaintiff to pay to defendant the sum of $1,600.

Defendant has filed in this court a motion to strike the bill of exceptions as not having been settled in time. It should be noted that this point was not raised in the trial court.

On the contrary counsel for the respective parties stipulated tha the bill was true, complete and correct, 'and that the same may be approved and settled and allowed by the Court, as provided by law.'

We have heretofore pointed out, under practically identical circumstances, that it 'ill becomes a voluntary signer of the compact to attempt to nullify it'. Central Montana Stockyards v. Fraser, 133 Mont. 168, 320 P.2d 981, 987.

Whether it is competent in any case for counsel to thus stipulate to the settlement of the bill of exceptions by the trial court, and then contend here that it was not timely, we need not here determine because in the view we take of the case it is determinable from the judgment roll alone and we need not resort to the bill of exceptions.

Plaintiff, in his complaint, alleged facts constituting a cause of action for divorce on the grounds of willful desertion, and prayed for a decree of absolute divorce. In her answer, defendant denied substantially all of these allegations, and affirmatively alleged 'as a separate and affirmative defense' that 'the plaintiff induced the defendant to invest her life savings in the purchase of livestock which the plaintiff now holds in his possession, with the exception of the livestock said plaintiff sold, and which said lfe savings amount to the sum of approximately $2,091.51.'

It was alleged in the answer that the plaintiff and defendant agreed that defendant should secure employment at the Montana Training School at Boulder for the purpose of acquiring social security benefits and that plaintiff would operate the farm near Ronan and acquire social security benefits so that both parties could thereafter live on the farm by virtue of the help received from their social security benefits.

Defendant further alleged: 'That since the 19th day of February 1955 [the date of the alleged desertion], the defendant has made periodical visits to the plaintiff and contributed toward the maintenance and operation of said farm the amount of approximately $1,000.00.'

Defendant alleged further: 'That it is impossible for the defendant to continue living with the plaintiff after the institution of this action and therefore the defendant should be entitled to a decree of separate maintenance.'

Defendant prayed that plaintiff take nothing and that defendant be granted a decree of separate maintenance in the sum of $100 per month plus $500 attorney fees, and 'for such other and further relief as to the Court will seem meet and just in the premises.'

In his reply, plaintiff admitted receiving $300 from defendant after February 19, 1955, but denied the other allegations of the answer.

The court found that defendant wife was guilty of desertion and that 'it is for the best interest of all parties that a divorce be given and made in this action, as these parties will not live together again as husband and wife.' The court further found 'that crediting the defendant wife with all of the monies she has contributed to the farm and dairy business, and deducting the benefits and monies she received from the proceeds of said checks, leaves a balance in her favor in the amount of approximately sixteen hundred dollars ($1,600.00), to which she is equitably entitled.' The court found that the approximate value of the ranch, cattle and personal property owned by plaintiff is the sum of $25,000.

The court concluded as a matter of law that the defendant was guilty of desertion and the plaintiff was entitled to an absolute divorce.

The court concluded further that the defendant pay her own attorney's fee, which the court fixed at $250. Judgment was entered accordingly.

As before stated, plaintiff has appealed only from that part of the judgment ordering the payment of money.

Defendant has moved to dismiss the appeal upon the ground that it is not competent to appeal from only a part of a judgment. Some members of the court think that motion should be sustained on the authority of Seibel v. Byers, Mont., 344 P.2d 129. In that case, this court squarely held that there was no such thing as an appeal from a part of a judgment and dismissed the appeal.

The writer of this opinion disagreed with the majority opinion in that case, and believes lieves that the appeal here should be considered on its merits since the statute, section 93-8005, authorizes an appeal from a judgment, 'or some specific part thereof', and also since the judgment is divisible within the rule stated in Wills v. Morris, 100 Mont. 504, 50 P.2d 858. And see State ex rel. Mueller v. Todd, 117 Mont. 80, 158 P.2d 299.

The writer points out that the Seibel case was based largely upon the case of Lohman v. Poor, 68 Mont. 579, 220 P. 1094, which was expressly overruled by Wills v. Morris, supra.

The only issue attempted to be raised on the merits is whether the money part of the judgment can stand in view of the fact that the court found that the wife was the offender. Our statute, section 21-139, in part, provides:

'Where a divorce is granted for an offense of the husband, the court may compel him to * * * make such suitable allowance to the wife for her support during her life, or for a shorter period, as the court may deem just.'

This court has repeatedly held that this statute prohibits the court from making an order requiring the husband to make provision for the wife's support, when the wife is the offender. Bischoff v. Bischoff, 70 Mont. 503, 226 P. 508; Damm v. Damm, 82 Mont. 239, 266 P. 410; Albrecht v. Albrecht, 83 Mont. 37, 269 P. 158; Grush v. Grush, 90 Mont. 381, 3 P.2d 402.

Section 21-139 is not involved in this case because the award to the wife here is not in any sense support money. It is simply a provision whereby the court is giving to defendant a part of what she contributed in accumulating the property held by the husband.

This court has held that the court, in an action for divorce, has no power to divest the title of the husband to specific real or personal property, in lieu of, or in addition to alimony. Refenach v. Rufenach, 120 Mont. 351, 185 P.2d 293. But here, as above noted, the order of the court simply awarded to the wife that which was already hers.

It is suggested that even this cannot be done under the rule followed in Emery v. Emery, 122 Mont. 201, 200 P.2d 251, and Shaw v. Shaw, 122 Mont. 593, 208 P.2d 514, but this case differs from those cases because here the court found by necessary implication that defendant did not make a gift to plaintiff of the advances made by her. The presumption of a gift is a rebuttable one and here, unlike the Emery and Shaw cases, it is rebutted.

Furthermore, the writer of this opinion points out again that he did not agree with the majority opinion in the Emery and Shaw cases as will appear from his dissenting opinions therein.

Also, though the point is not directly involved here, the writer thinks that the case of Rufenach v. Rufenach, 120 Mont. 351, 185 P.2d 293, supra, and others holding that a divorce court cannot adjust property rights are erroneous and should be overruled.

A divorce court is a court of equity. Bordeaux v. Bordeaux, 43 Mont. 102, 115 P. 25. Once equity takes jurisdiction of a controversy it will grant complete relief. See innumerable cases in 4 Montana Digest, Equity, § 39(1), 162. A divorce court in Montana has been given jurisdiction over property for certain purposes.

Thus section 21-142 provides: 'The property of the husband and wife may be subjected to the support and education of the children, in such proportions as the court deems just, or the property of the guilty party only may be subjected to such support and education.'

And again section 21-145 provides: 'In case of the dissolution of the marriage by the judgment of a court of competent jurisdiction, the homestead, if selected from the separate property of either husband or wife, shall be assigned to the former owner of such property, subject to the power of the court to assign it for a limited period to the innocent party.'

The case of Thrift v. Thrift, 54 Mont. 463, 171 P. 272, is frequently cited as authority for the proposition that the court has no authority to transfer title to property from one spouse to the...