Patrick v. Patrick, 32360

• Decision Date: 31 August 1953
• Docket Number: No. 32360,32360
• Citation: 43 Wn.2d 139,260 P.2d 878
• Court: Washington Supreme Court
• Parties: PATRICK, v. PATRICK.

Page 139

43 Wn.2d 139

260 P.2d 878

PATRICK, v. PATRICK.

No. 32360.

Supreme Court of Washington, Department 2.

Aug. 31, 1953.

Rehearing Denied Nov. 16, 1953.

Cleman and Crimp, Ellensburg, for appellant.

Halverson & Applegate, H. R. Williams, Yakima, for respondent.

FINLEY, Justice.

This is a divorce proceeding. The defendant wife appeals from a decree of divorce rendered by the superior court for Kittitas county. She questions: (a) the awarding of a divorce to the husband, contending the evidence shows that she alone is entitled to a divorce; (b) the propriety of the property disposition made by the trial court; and (c) the court's refusal to grant alimony to her.

The testimony elicited on trial is lengthy and, in many respects, confusing and conflicting. We shall not attempt to restate it at length but shall state only those facts material to this appeal.

The parties married in February of 1939, relatively late in life. The plaintiff husband was thirty-four and defendant wife was thirty-seven at the time of the marriage. There were no offspring from the marriage. The parties lived together for twelve years (except for a short separation in 1948). In June of 1951, the plaintiff husband left the home and commenced this divorce action.

At the time of her marriage, the wife was employed in a Seattle drug store, where she worked for a few months after the marriage. Apparently, she was unaware at that time of the fact that plaintiff was a man of some substance relatively speaking, in that he was the beneficiary of two trust funds set up in his favor by his parents. One of these trusts was solely in plaintiff's favor; he shared as a joint cestui que trust with his brothers and sisters in the second trust. The husband, James S. Patrick, is a man of little formal education. During most of his adult life he has worked as a coal miner in a Cle Elum mine, owned and controlled by his family.

Early in their married life, the parties moved to Cle Elum and built a home. Whatever the stability of their marriage in its early years, appearently each of the parties became dissatisfied with the other one in later years. Defendant contends that her husband was given to excessive drinking, which finally led to his institutionalization; that he neglected her and treated her cruelly; that he was filthy and careless in his personal habits. The plaintiff, who also tired of his wife, contends that her constant nagging and mental cruelty made life unbearable for him. Seemingly, this state of affairs led to their first marital crisis in 1948, when the wife commenced a divorce action against her husband. Eventually she dropped the action and the parties resumed their marital relation. The record shows that, shortly after their reconciliation, the husband made a gift to his wife of his interest in their Cle Elum home, and also a gift of a $5,000 United States bond, series G.

The reconciliation lasted until 1951, when, as mentioned above, the husband commenced the present divorce action. The wife cross-complained for a divorce, asking for alimony and a fair division of the property.

The appellant wife makes fourteen assignments of error attacking various fact findings and conclusions of the trial court and the provisions of the divorce decree. In her first assignment of error, she contends that she was denied a fair trial because, shortly after the trial began, the trial judge called counsel for both parties into his chambers and, at an informal conference, told them that, where the parties had married late in life and no children were involved, it was his practice to grant each of them a divorce from the other. Although what transpired at the conference is not before us as a matter of record, we do have in the trial court's memorandum decision the benefit of the judge's reference to the substance of this conference with counsel. Appellant contends that, by virtue of the trial judge's suggestion at the conference (that the parties confine their proof to whether the property was separate or community), the trial judge in effect prejudged the issues and cut off appellant's right to prove fault, which would have been an important factor in the awarding of alimony. Appellant contends that certain rulings of the trial judge also support her claim that he was prejudiced toward her cause.

After reviewing the record, we are convinced that whatever the trial judge may have suggested relative to having the parties confine their proof to the main issue of whether the property involved was separate or community, neither party abided by nor felt controlled by the suggestion. The statement of facts is 485 pages in length, excluding the memorandum decision of the court. An examination of the statement of facts shows clearly that both parties dealt extensively with the issue of the fault of the other spouse.

The second and third assignments of error, argued together under the claim that the court should have denied a divorce to respondent, are directed mainly at the fourth finding of fact made by the trial court wherein the court, in substance, found that each party had, for more than a year prior to the commencement of this action, subjected the other to cruel treatment and personal indignities; and that the criticism, fault-finding, and nagging of each party made life burdensome for the other.

The appellant's claim is that this finding is not supported by the evidence in that the record shows appellant was a good wife, maintained a proper home, and was of good character, all in contradistinction to respondent, who had poor habits, abused appellant, and drank so excessively as to require hospitalization.

The weakness of appellant's argument is that the one-sided version of facts, recounted in her brief, ignores the portions of the evidence unfavorable to her. On the issue of fault, the record shows that the evidence was sharply conflicting. Given this conflicting evidence, it was for the trial court to determine the credibility of witnesses and to measure the fault of each party. Thus, this aspect of the case falls within the familiar rule, requiring no citation of authority, that the fact findings of a trial court will be affirmed on appeal where the evidence is conflicting, and we cannot say that it clearly preponderates against the findings. With regard to the second claim made under this argument--that the trial court erred in denying appellant's motion for judgment notwithstanding its oral decision, we have indicated our view that the evidence does not preponderate against the findings, and that we will not disturb the findings. This, in effect, disposes of the claim of error directed at the trial court's denial of the motion for judgment notwithstanding the oral decision. Since the findings, as they stand, support and are consistent with the conclusions announced in the trial court's oral decision, no error was committed in denying the motion.

Assignments of error Nos. 4...