Malouf v. Malouf, 2107

• Decision Date: 16 May 1939
• Docket Number: 2107
• Parties: MALOUF v. MALOUF
• Court: Wyoming Supreme Court

90 P.2d 277

54 Wyo. 233

MALOUF v. MALOUF

No. 2107

Supreme Court of Wyoming

May 16, 1939

Rehearing denied without opinion, July 11, 1939.

APPEAL from District Court, Uinta County; VOLNEY J. TIDBALL, Judge.

Divorce proceedings by Michael E. Malouf against Roshaee Malouf. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

For the defendant and appellant, the cause was submitted on the brief of Louis Kabell, Jr. of Evanston, Wyoming.

The evidence is insufficient to support the decree and the decree is contrary to law. 17 Amer. Jur. 347, 348, 210, 211, 209. 19 C. J. 66, 80. Williams v. Williams (Ariz.) 265 P 87. Note 25 A. L. R. 1047. Merritt v. Merritt (N H.) 155 A. 692. Madsen v. Society (Wyo.) 169 P. 336. Stirrett v. Stirrett (Wyo.) 248 P. 1. Schultz v. Schultz, 46 Wyo. 121. The Court erred in denying plaintiff's motion to require a separate statement of causes of action. Sec. 89-1005 R. S., Kearney Stoneworks v. McPherson, 5 Wyo. 178. The Court erred in sustaining plaintiff's demurrer to the second defense of defendant's answer. 17 Am. Jur. 405; Sec. 35-121 R. S. Willis v. Willis (Wyo.) 49 P.2d 670. Harding v. Harding, 198 U.S. 317. 30 C. J. 1096. The Court erred in the admission and exclusion of evidence. 17 Am. Jur. 375. 19 C. J. 131. Sharp v. Sharp, 56 Pa. Sup. 181.

For the plaintiff and respondent, the cause was submitted on the brief of T. S. Taliaferro, Jr. and A. L. Taliaferro of Rock Springs.

If counsel for appellant had understood the force and effect of Sec. 35-121 R. S. this appeal would not have been brought. Urbach v. Urbach (Wyo.) 73 P.2d 956. A trial court has an advantage by observing the demeanor of the parties in giving their testimony not shared by appellate court in reviewing a transcript of the evidence. City of Rock Springs v. Sturm, 39 Wyo. 514. Respondent's overtures for a reconciliation were shown to have been made in good faith. The cases of Taylor v. Taylor and Miller v. Miller were not in point on the facts. Sec. 35-121 R. S. is not concerned with limited divorces. The "Separate Maintenance" judgment cannot be Res Judicata because the issues are not the same. The Court made no adjudication that the wife was living apart for a justifiable cause. A wife persisting in the desertion of her husband is guilty of statutory desertion. Merritt v. Merritt (N. H.) 155 A. 692. That part of the decree concerning the maintenance and custody of the children is severable and cannot render the decree reversible. There was but one cause of action in the petition. Hanks v. Hanks, 27 Wyo. 65. There is no element of Res Judicata in the case. The former suit was for Separate Maintenance. The present suit was for a divorce. The cause of action in the case at bar arose at a time subsequent to the Separate Maintenance case which has nothing in common with the law governing divorces. Public policy favors efforts made for a reconciliation. The case of Vickers v. Vickers (W. V.) 122 S.E. 279, a well considered case, is against appellant's contention.

Heard before Riner, Chief Justice; Kimball, Justice; and Harry P. Ilsley, District Judge. RINER, Ch. J. and ILSLEY, District Judge, concur.

OPINION

KIMBALL, Justice.

This is an appeal by the wife from a judgment granting the husband a divorce on the ground of desertion, and providing for the custody and support of four minor daughters.

The husband as plaintiff filed his petition on October 31, 1936, charging that "for more than one year prior to the filing of this petition, the defendant wilfully deserted the plaintiff, and ever since has failed and refused to live with the plaintiff, notwithstanding the fact that the plaintiff has courted the defendant to resume her residence with the plaintiff and has promised the defendant to do all in his power to render their domestic relations happy."

The ground as stated in the statute (R. S. 1931, § 35-108, par. 4) is "when either party has wilfully deserted the other for the term of one year."

The defendant in her answer, after denying the fact of desertion, alleged as a separate defense that in a former action in the same court between the same parties, wherein the wife had petitioned for support of herself and the children and the husband by cross-petition had sought a divorce, the court had found in favor of the wife on the merits, and on October 12, 1935, duly made and entered judgment which continued in full force. The answer quotes enough of the findings and judgment to show that it was decided that the husband had been guilty of extreme cruelty toward the wife who with the four children had left the home of the husband because of his conduct, and it was found that the wife was entitled to a "decree of separate maintenance as prayed for in her petition." It was adjudged that the wife have the custody of the children; the possession of certain articles of household furniture to be delivered by the husband to her at her "place of abode" in Evanston, Wyoming, and that the husband pay $ 70 per month (or $ 60, and certain food) "for the support and maintenance" of the wife and children.

A demurrer to the separate defense on the ground that it "set forth no fact constituting a defense to plaintiff's petition," was sustained by the judge of the third district, the district in which the action was pending. Thereafter, the divorce action was referred for trial and determination to the judge of the second district, by an order which contains no reference to the judgment for separate maintenance in the former action. The plaintiff at the trial insisted, and the trial judge agreed, that the judge of the third district retained jurisdiction of the separate maintenance proceeding.

On the trial there was evidence that in November, 1934, the wife and children left the husband's home, on a farm about two miles from Evanston, and went to Evanston, where she had continued to live. On November 26, 1935, the husband wrote a letter to the wife asking her to return to his home. The wife refused to return, and the husband contends that the refusal was an unjustified rejection of his offer to effect a reconciliation. The judgment in the former action for separate maintenance, pleaded by the wife but eliminated by demurrer, was incidentally referred to during the trial, but was not put in evidence.

The trial judge found that "for more than one year prior to the filing of the plaintiff's petition herein, the defendant wilfully deserted the plaintiff, without just cause or excuse, and ever since has failed and refused to live with the plaintiff, notwithstanding the fact that the plaintiff, after said desertion, had requested the defendant to resume her residence with the plaintiff, and had promised the defendant to do all in his power to render their domestic relations happy"; granted a divorce; ordered that the husband pay $ 50 a month for support of the children, and retained jurisdiction of the parties and their property for the purpose of final division of the property in the future if that should be found advisable.

The judgment as originally entered made no reference to the judgment for separate maintenance, but the next day by amendment it was provided that the judgment in the divorce action should not affect the liability of the...