Murray v. Murray, 29980.

• Decision Date: 12 November 1946
• Docket Number: 29980.
• Citation: 26 Wn.2d 370,174 P.2d 296
• Parties: MURRAY v. MURRAY.
• Court: Washington Supreme Court

174 P.2d 296

26 Wn.2d 370

MURRAY v. MURRAY.

No. 29980.

Supreme Court of Washington

November 12, 1946

Department 2

Department 2.

Divorce action by Isabel Harvey Murray against A. W. Murray. The defendant filed a cross-complaint. From an interlocutory order, the defendant appeals.

Order affirmed as modified.

Appeal from Superior Court, King County; J. T Ronald, Judge.

McClure & McClure, of Seattle, for appellant.

F. M Reischling, of Seattle, for respondent.

STEINERT Justice.

Plaintiff brought suit for divorce from the defendant on the grounds of mental cruelty and personal indignities rendering life burdensome, and in her complaint asked that all of the community property of the parties, together with her separate property, be awarded to her, that the defendant be required to pay her alimony in the sum of $200 a month, and that she be allowed the sum of $500 as an attorney's fee. Defendant cross-complained seeking a divorce upon similar grounds and upon the additional ground of alleged importency of the plaintiff, and asked in his pleading that the court make a just and equitable division of the property. After trial of the cause the court made findings of fact, drew conclusions of law, and entered an interlocutory order granting plaintiff a divorce, awarding to her almost all of the property, directing defendant to pay plaintiff alimony indefinitely in the sum of $50 a month, and allowing her an attorney's fee of $200 and the costs of the action. Defendant appealed.

Respondent, Isabel Harvey Murray, and appellant, A. W. Murray, were united in marriage on October 20, 1928, and, except for a period of two or three weeks about six years ago, lived together, though unhappily, until October 20, 1945, at which time she was approximately 46 years of age and he was approximately 50. No children have been born to this union.

The parties are agreed that their differences are irreconcilable, and both were emphatic in their testimony that neither of them cared to longer live with the other. Appellant's appraisal of the conditions which have continuously prevailed throughout the married life of the parties was expressed by him at the trial, as follows:

'By The Court: Q. Do you think it is possible you and she could ever go back and live together? A. No. I tried it for seventeen years.

'Q. You don't want her back, then? A. No. Neither one of us would be happy. * * *

'[By Counsel] Q. I think you answered the Court's question as to whether or not you considered the differences between you and Mrs. Murray reconcilable. You consider them irreconcilable? A. In answering that I may say we separated about six years ago. I left her and was gone for two or three weeks and I thought at that time when we affected a reconciliation we might be able to reconcile and iron out our differences and we both agreed we would iron them out and did for a short time but then the situation became worse than it was Before I left her the first time.

'Q. You separated the last time when you went out to Martha Lake to take care of your aged parents? A. Yes.'

The respondent was no less positive in her assertions that the conditions were irreconcilable.

These unhappy relations culminated in a quarrel between the parties on October 20, 1945, which was their wedding anniversary. In consequence of this disruption appellant left the home permanently, and shortly thereafter, on November 1, 1945, respondent instituted the present action.

In a bill of particulars supplementing her complaint, respondent alleged, a specific grounds for divorce, that appellant had given her only small sums of money with which to defray the household expenses and to purchase clothes for herself, despite the fact that he at such times was earning large sums of money; that appellant had been 'so ugly, overbearing, and impolite' to her friends that it was impossible for her to have them in her home; that for a period of a year and a half he had threatened to divorce her and had told her that he cared more for his dogs than he did for her; that on their last wedding anniversary he had stated to her that the occasion meant absolutely nothing to him; that on numerous occasions he had humiliated her by his criticisms of her in the presence of her friends; and that these acts and the personal indignities which he had heaped upon her had caused her to lose all love and affection for him.

In his cross-complaint appellant alleged, as particular grounds for divorce, that for many years respondent had shown no love or affection for him; that she 'constantly criticized, nagged, scolded, and abused him;' that she was possessed of a violent and ungovernable temper which she frequently visited upon him; that she spoke disparagingly of his mother; that she refused to accompany him when he took up his residence with his parents in order more properly to care for them; that respondent had repeatedly refused to accompany him on hunting and fishing trips; that she disliked children; that she had a great fear of pain but refused to consult physicians if she could possibly avoid doing so; that she declined to have anything to do with persons who were sick; and that she was 'impotent' but would not seek competent medical advice upon the matter.

Needless to say, each of the parties denied the charges made by the other, although respondent did admit that she had reached that age which makes childbearing improbable.

Upon the trial, each of the parties produced five witnesses, including themselves, and the evidence tended to support, to a greater or a lesser extent, the charges which each had made against the other.

It would serve no useful purpose to set forth the evidence in detail. At the conclusion of the hearing the trial judge rendered an oral decision in which he analyzed the evidence and concluded therefrom that the respondent had substantiated her charges of cruelty but that appellant had failed to sustain the allegations of his cross-complaint. Findings of fact, conclusions of law, and an interlocutory order in favor of the respondent were accordingly made and entered.

The appellant contends upon the appeal that the divorce should have been granted to him. We have carefully read and considered the entire record in the case and are unable to agree with appellant in that contention; at any rate, we are unable to say, from the record, that the evidence does not preponderate in favor of the respondent upon the charges made by her, as well as upon the countercharges made by appellant.

From what has thus far been related, it is apparent that neither party is claiming that no divorce at all should have been granted by the court. Both parties desire and seek that result, and the only question as to that phase of the case is whether the one or the other of them is entitled to the divorce. Since we agree with the trial court in its disposition of that issue, the interlocutory order will stand approved in that respect.

As may be surmised, the principal controversy in this case centers upon the property settlement and other awards made by the trial court, and we now address ourselves to those matters.

The trial court found, and, with the exception of one item, the parties are in agreement, that the community property consists of the following: (1) The family home in Seattle, the purchase price of which was $6,500; but which at the present inflated market prices could be sold for $13,750, subject to an existing mortgage of approximately $1,500; (2) household furniture and furnishings of the value of $2,000; (3) a 1929 Plymouth automobile worth approximately $75; (4) cash in bank amounting to $201; (5) United States War Bonds of the value of $875; (6) a 1941 DeSoto automobile of the approximate value of $1,150; (7) an interest, valued at $500, in certain property located near Martha Lake, Washington, and (8) an unpaid profit of $500 arising out of a stock transaction. This last-mentioned item is disputed by the appellant, it being his contention that it amounts to only $479.03 and is part of an investment pool upon which he still owes the sum of $600.

In his first oral decision the trial judge stated (1) that the respondent would be awarded the first five items of property above set forth, and that, in addition, appellant would be required to pay off the $1,500 mortgage on the family home and (2) that the appellant would be awarded the last...