Pilliner v. Pilliner

• Decision Date: 02 February 1943
• Docket Number: 7035
• Citation: 64 Idaho 425,133 P.2d 735
• Parties: FRED J. PILLINER, Appellant, v. REBECCA PILLINER, Respondent
• Court: Idaho Supreme Court

133 P.2d 735

64 Idaho 425

FRED J. PILLINER, Appellant, v. REBECCA PILLINER, Respondent

No. 7035

Supreme Court of Idaho

February 2, 1943

DIVORCE-EVIDENCE SUFFICIENCY OF-TRIAL-NONSUIT-HUSBAND AND WIFE-SEPARATE MAINTENANCE.

1. A motion for nonsuit for insufficiency of evidence to support a judgment must specify wherein evidence is insufficient and call court's attention to specific insufficiency relied upon.

2. Purpose of rule requiring motion for nonsuit for insufficiency of evidence to specify wherein evidence is insufficient is to require moving party to apprise court and opposing counsel of defect relied upon.

3. In action for divorce on single ground of infliction of grievous mental suffering, defendant in moving for nonsuit was not required to enumerate facts which he contended should have been proven, and motion based upon insufficiency of evidence to establish any ground for divorce and insufficiency to constitute any corroboration was sufficient.

4. Under statute committing subject of divorce to district courts to be tried as equity cases and prohibiting granting of divorce upon default or upon uncorroborated statement admission, or testimony of the parties, the making of a "prima facie case" as that term is ordinarily used in law of evidence is insufficient to justify a decree of divorce. (I.C.A., sec. 31-703.)

5. In action for divorce for infliction of grievous mental suffering, where plaintiff admitted that parties did not quarrel, and evidence merely disclosed that plaintiff was partially deaf and defendant had a temper, and that misunderstandings and differences of opinion resulted, a judgment of nonsuit was authorized.

6. Where husband owned home and left it of his own choosing to live separate and apart from wife, husband was properly ordered to provide maintenance for wife while separation continued.

7. Order directing jeweler who owned residence occupying four lots to pay wife $65 per month for her separate maintenance was not excessive under all the circumstances.

8. Orders for separate maintenance, where divorce is not granted, are not "final" and remain subject to modification on showing changed conditions.

9. The law favors reconciliation.

Appeal from the District Court of the Third Judicial District, for Elmore County. Hon. Chas. F. Koelsch, Judge.

Action for divorce and cross-complaint for separate maintenance. Appeal from judgment denying plaintiff a divorce and order granting separate maintenance to defendant. Affirmed.

Judgment affirmed. No costs awarded.

Ariel L. Crowley for appellant.

It is reversible error to grant a nonsuit when plaintiff has made out a prima facie case, and the motion for nonsuit should have been denied herein. (Kroetch v. Empire Mill Co., 9 Idaho 277, 74 P. 868; Adams v. Bunker Hill, etc., Co., 12 Idaho 637, 89 P. 624; Schlief v. McDonald, 37 Idaho 423, 216 P. 1044.)

A motion for nonsuit which fails to specify the particulars in which it is claimed that the evidence is insufficient must be denied. (Idaho Mercantile Co. v. Kalanquin, 7 Idaho 295, 62 P. 925; Mole v. Payne, 39 Idaho 247, 227 P. 23 (and cases cited).

The evidence in this case does not justify an award of separate maintenance on the ground of desertion. Mutual agreement to separation is an absolute bar to a charge of desertion. (Jacobson v. Bunker Hill, etc., Co., 3 Idaho 126, 28 P. 396; Note: 138 Am. St. Rep., pp. 146, and e., p. 152; 19 C. J. 64, Sec. 120, and cases Notes 26 and 27; 27 C. J. S. 572, Sec. 38, and cases Notes 73 and 74.)

It is improper, in actions for separate maintenance, to fail to take into consideration earning capacity of the parties severally; and confiscatory and excessive allowances will be reduced in this court. (5 Nichols Applied Evidence 4218; Vollmer v. Vollmer, 47 Idaho 135, 273 P. 1; Radermacher v. Radermacher, 61 Idaho 261, 100 P.2d 955; Radermacher v. Radermacher, 59 Idaho 721, 87 P.2d 463; Ashton v. Ashton, 59 Idaho 408, 83 P.2d 991.)

Eugene H. Anderson for respondent.

The court could not grant appellant a divorce because he does not wish to live with the respondent. (Cawley v. Cawley, (Utah) 202 P. 10; Holman v. Holman (Utah), 77 P.2d 329.)

No divorce can be granted upon the uncorroborated testimony of the parties, and this provision of the law is mandatory. (I. C. A. 31-703; Bell v. Bell, 15 Idaho 7, 96 P. 196; Stephens v. Stephens, 53 Idaho 427, 24 P.2d 52.)

In an action for separate maintenance, the purpose of which is to enforce specifically the husband's obligation to furnish support to his wife, it is well settled that the amount to be granted is within the discretion of the trial court, subject to revision only in case of abuse. (Walker v. Manson, 49 Idaho 468, 289 P. 86; Horton v. Horton (Cal.), 116 P.2d 605; Rademacher v. Rademacher, 61 Idaho 261, 100 P.2d 955.)

AILSHIE, J. Budge and Dunlap, JJ., concur. Holden, C.J., and Givens, J., dissent.

OPINION

AILSHIE, J.

This is an appeal from a judgment of nonsuit and an order requiring plaintiff to pay defendant maintenance. For convenience, we will hereafter refer to the appellant as plaintiff and respondent as defendant.

The action was instituted by plaintiff, praying for a decree of divorce on the grounds of the infliction of grievous mental suffering. Defendant answered, denying the allegations of the complaint and charging plaintiff with wilful desertion and praying for a decree, requiring plaintiff to pay a specified sum for her maintenance while plaintiff lives separate and apart from her.

The evidence on behalf of the plaintiff was introduced and proved to be very meager, desultory, and inconsequential. Upon motion of defendant's counsel, the court granted a nonsuit and, thereupon, proceeded with the trial of defendant's cross-complaint, charging desertion and praying separate maintenance. At the conclusion of the trial, the court made findings, conclusions of law, and judgment in favor of defendant and against the plaintiff. Appeal was taken by plaintiff "from the judgment of nonsuit and the decree for separate maintenance."

The material and essential findings made by the court are comprised in Paragraphs III, IV, and V, and are as follows:

"III.

"That the plaintiff wilfully deserted, separated from, and ceased to live with the defendant on or about the 3rd day of April, 1940, and that plaintiff and defendant have ever since lived separately and have not since lived nor cohabited together as husband and wife.

"IV.

"That during their said marriage and prior to their said separation the plaintiff treated the defendant in a cruel and inhuman manner and repeatedly committed acts of cruelty of and toward the defendant, and that the plaintiff for long periods of time prior to a separation from the defendant, was sullen, morose, fretful, petulant of manner and abusive of and toward the defendant and uniformly and continuously discourteous of and toward the defendant and that during the period of more than a year preceding the time of their said separation the plaintiff for long periods of time, and for days at a time, in and about the home where plaintiff and defendant lived, refused to speak to the defendant at all or to recognize her as being present, and was domineering in his conduct and attitude toward the defendant, and during their said marriage refused to furnish sufficient clothing for the defendant to properly clothe her body.

"V.

"That the defendant is a woman of fine sensibilities, and that the said course of conduct of the plaintiff of and toward the defendant was intended and calculated by him to irritate and humiliate her and to produce in her high nervous distraction and that the said cruel conduct and treatment of the plaintiff of and toward the defendant did cause her to become highly nervous and did produce in her high nervous distraction, and did humiliate her, and did cause her great mental anguish and grievous mental suffering."

The first contention made on this appeal is, that the motion for nonsuit was insufficient in its specifications and not adequate to properly present to the court any ground on which to grant the motion. Defendant's motion was as follows:

"I move that judgment of nonsuit be entered on the plaintiff's complaint, in favor of the defendant and against the plaintiff, on the ground that no ground for divorce has been proven, and on the ground that there has been no corroboration of the statements of the plaintiff with respect to his testimony purporting to be grounds for divorce."

It is the established rule in this court, that a motion for nonsuit, on insufficiency of the evidence to support a judgment, must specify wherein the evidence is insufficient and call the court's attention to the specific insufficiency relied upon. (Idaho Mercantile Co. v. Kalanquin, 7 Idaho 295, 298, 62 P. 925; Merrill v. Fremont Abstract Co., 39 Idaho 238, 227 P. 34; Mole v. Payne, 39 Idaho 247, 253, 227 P. 23; Schleiff v. McDonald, 37 Idaho 423, 216 P. 1044; Carver v. Ketchum, 53 Idaho 595, 26 P.2d 139.)

The purpose of this rule is to require the moving party to apprise the court and opposing counsel of the defect relied upon. Where, as in this case, the motion is based upon the insufficiency of evidence to establish any ground for divorce, and also insufficiency to constitute any corroboration, we think the motion is sufficiently definite to meet the requirements of the rule. Apparently, neither counsel nor the trial court was deceived or misled.

In this case relief was sought on a single ground, namely, the infliction of "grievous mental suffering"; and we do not think the rule requires, in such a case, the moving party to enumerate the facts that he contends should have been proven; especially, where he claims that no facts have...