Loth v. Loth

• Decision Date: 07 January 1949
• Docket Number: 34778.
• Citation: 35 N.W.2d 542,227 Minn. 387
• Parties: LOTH v. LOTH.
• Court: Minnesota Supreme Court

35 N.W.2d 542

227 Minn. 387

LOTH v. LOTH.

No. 34778.

Supreme Court of Minnesota

January 7, 1949

[Copyrighted Material Omitted]

Syllabus by the Court.

1. Error is never presumed on appeal, and the burden is on the party asserting it not only to make error appear, but also that it was prejudicial to him.

2. Findings of fact based on conflicting evidence will not be disturbed on appeal unless manifestly and palpably contrary to the evidence as a whole; even though we might find the fact to be different if we had the fact-finding function.

3. An award of alimony under M.S.A. s 518.22 should be made out of the whole of defendant's property and not out of his real and personal property separately.

4. A husband may make a valid gift to his wife of personal property.

5. There is no presumption that corporate stock has substantial value.

6. Bonds are presumed to be of their face value.

7. The court will not take judicial notice of the value of particular personal property, even though its value is determined by public trading in the market.

8. A husband's income must be estimated at the amount of the previous year, and not by an average of years.

9. An uncontroverted statement in appellee's or respondent's brief or argument will be taken as true.

10. Where the value of property or a right is not shown in a litigation, it will be considered to be only nominal.

11. Accrued temporary alimony is not to be considered as part of the permanent alimony awarded, but it should be considered as reducing defendant's whole property by the amount thereof.

12. In reviewing on appeal the reasonableness of the amount of permanent alimony, the standards to be applied are those prescribed by s 518.22, that it shall not exceed one-third of the husband's property and income and that it shall be such as the court 'deems just and reasonable, having regard to the ability of the husband, the character and situation of the parties, and all other circumstances of the case.'

Appeal from District Court, Hennepin County; E. A Montgomery, Judge.

Guesmer Carson & MacGregor, of Minneapolis, for appellant.

Fred A. Ossanna, of Minneapolis (Charles T. Hvass, Jr., of Minneapolis, of counsel), for respondent.

PETERSON Justice.

Plaintiff was granted a divorce. Defendant appeals. On the appeal no questions are raised with respect to the propriety of granting the divorce. Defendant's only contention is that the alimony and allowances awarded are excessive.

Defendant's contention that the alimony and allowances awarded to plaintiff are excessive raises the following questions: (1) Whether upon conflicting evidence a finding is justified that defendant made a gift to plaintiff of the excess of money deposited in bank accounts as joint tenants over and above amounts expended by her to maintain their home; (2) whether corporate stocks owned by defendant and an interest in life insurance policies on his life were part of defendant's property and subject to be awarded as alimony, where the value of neither the stocks nor the interest in the life insurance policies so awarded was shown; (3) whether accrued temporary alimony adjudged by the judgment of divorce to be paid is an award of permanent alimony for the purpose of computing one-third of defendant's property, the statutory maximum which may be awarded as such; and (4) whether the award here made is excessive in view of the circumstances of the case. There are some subsidiary questions to be decided which we need not mention now.

These questions arise out of the decision below holding in effect that defendant had made a valid gift to plaintiff of the money in the bank accounts; that consequently the bank accounts were not to be considered as part of defendant's property or as part of the alimony awarded; that the stocks and the interest in the life insurance policies were not only part of defendant's property and subject to an award of alimony, but also for lack of proof of the value thereof were to be considered as having only nominal value; that the accrued temporary alimony adjudged to be paid was not to be considered in determining the amount of either defendant's property or of the permanent alimony awarded; and that the amounts awarded were reasonable under the circumstances.

The decision granting plaintiff a divorce was filed on December 16, 1947. Plaintiff and defendant were then 52 and 58 years old, respectively, and had been married for approximately 30 years, during which they raised a family of two sons, one of whom was killed in World War II, and a daughter. Defendant, a baker, like many others, had humble beginnings and rose in his chosen field. During his early years he operated a bakery with the assistance of plaintiff. Later, he became an executive of Gladness Bakeries, Inc., at a substantial salary. All seems to have gone well for the parties during the years of their joint struggles when they operated their own business, but not so after defendant became a bakery company executive, because then his attitude toward his wife changed, and his treatment of her was cruel and inhuman, consisting in part of an adulterous affair with another woman. As a result thereof, plaintiff sustained severe shock and impairment of health.

In view of the facts that plaintiff upon the appeal stated the value of certain aviation and radio stocks owned by defendant, which was not shown in the record, to be.$7,162.50, and that defendant has adopted the statement for purposes of submission here, we deem it advisable to state first what the record, upon which the trial judge based his decision, shows, and then what it shows as modified by plaintiff's statement. The record, as made below, shows that defendant owned at the time of decision there a house and lot valued at $6,500; three bank accounts aggregating $3,857.88; cash amounting to $7,746; five life insurance policies, the cash surrender value of which was $5,622.20; war savings bonds amounting to $1,233.86; stock of Gladness Bakeries, Inc., of the value of $21,449.50; a Ford automobile of the value of $1,100; and the aviation and radio stocks, the value of which was not shown. If a nominal value be placed on the latter--$10--the value of the whole of defendant's property was $47,519.44. If the $2,175 accrued temporary alimony be deducted therefrom, his property was of the value of $45,344.44. The permanent alimony awarded to plaintiff consisted of the home valued at $6,500, cash amounting to $3,871.94, war savings bonds $1,233.86, and the aviation and radio stocks (at a nominal value) at $10, making a total of $11,615.80, or approximately one-fourth of defendant's property.

If, as defendant claims, the amount of the bank accounts which plaintiff claims he gave her, $12,272.74, and which she withdrew from the banks prior to the commencement of the action, be considered as part of his property and of the alimony awarded, the value of the whole of his property would be $59,792.18 and the amount of the alimony would be $23,888.54. If to the latter figure be added the $2,175 accrued temporary alimony, the amount of the alimony awarded would be $26,063.54. In any event, according to defendant's contentions, the amount of alimony awarded greatly exceeds the permissible statutory one-third. But defendant does not stop here. He contends that the cash surrender values of the insurance policies ($5,622.20) and the value of the aviation and radio stocks ($7,162.50, from which the nominal value ($10) allowed should be deducted) should be added to both the amount of his property and the alimony awarded, thereby making the amount of the latter still more excessive.

If, however, the value of the aviation and radio stocks be added to the undisputed items comprising defendant's property, the value of his whole property would be $54,671.94. If the $2,175 accrued temporary alimony be regarded as diminishing his whole property by that amount, his whole property amounted to $52,496.94. If the value of those stocks be added to the amount of the alimony awarded, it would amount to $18,768.30, or $1,269.32 in excess of one-third of the value of defendant's property.

At the trial, plaintiff's counsel stated to the court that he assumed that the court would take judicial notice of the value of the aviation and radio stocks and, acting upon that assumption, offered no evidence as to their value. The trial judge gave no intimation that he would act upon counsel's assumption. Defendant's counsel remained silent, and he also offered no evidence as to their value. It is apparent from the motion for amended findings that defendant's counsel acted upon the supposition that, because the value of the stocks was not shown, the court could not take them into consideration in awarding alimony.

We shall make such further statement of the facts as may be necessary in connection with the particular questions to be considered.

1. The argument of defendant has proceeded upon the assumption that upon appeal we should consider the entire case De novo. As we have repeatedly pointed out--as recently as in Lappinen v. Union Ore Co., 224 Minn. 395, 411, 412, 29 N.W.2d 8, 19--our so-called appeal is in the nature of a writ of error, under which our function is not to try a case De novo, but to determine whether error was committed in the trial court. And, as pointed out in the Lappinen case, it follows that in this court a finding of the trial court is attended with every presumption of evidentiary support. The rule applies in divorce cases the same as in others. As said in Potter v. Potter, 224 Minn. 29, 32, 27 N.W.2d 784, 786 (quoting from Waters v. Fiebelkorn, 216 Minn. 489, 495, 13 N.W.2d 461, 464):

'It is well to bear in mind that on appeal error is never presumed. It must...