Pinney v. Pinney

• Decision Date: 16 February 1926
• Docket Number: 4276
• Court: Utah Supreme Court
• Parties: PINNEY v. PINNEY

245 P. 329

66 Utah 612

PINNEY v. PINNEY

No. 4276

Supreme Court of Utah

February 16, 1926

Appeal from District Court, Third District, Salt Lake County; Chris Mathison, Judge.

Action by Winnifred Pinney against Earl W. Pinney. Decree for plaintiff. Plaintiff appeals from a decree dividing the property and awarding alimony, but failing to direct defendant to pay plaintiff's costs.

DECREE AFFIRMED IN PART, REVERSED IN PART, AND SET ASIDE IN PART AND CAUSE REMANDED, WITH DIRECTIONS.

Pratt &amp Pratt, of Ogden, and J. Louis Brown, of Salt Lake City, for appellant.

Willard Hanson and A. H. Hougaard, both of Salt Lake City, for respondent.

GIDEON C. J. THURMAN, FRICK, and CHERRY, JJ., concur. STRAUP, J. did not participate.

OPINION

GIDEON, C. J.

This is a divorce action. The complaint charges defendant with cruelty. Plaintiff based her prayer for divorce upon that ground. Defendant denied the cruelty charged. In a counterclaim he charged plaintiff with certain acts of cruelty, and upon that asked for a divorce in his favor. The court made findings in favor of plaintiff, and awarded her a decree of divorce, and gave her the custody of the minor child, issue of the marriage. The division of the property, the amount of monthly alimony awarded plaintiff, and the failure of the court to direct defendant to pay plaintiff's costs and disbursements, including counsel fees, are assigned as error.

The appeal is upon the judgment roll. The facts found by the trial court, in the absence of the evidence, are conclusive and binding upon the court. The assumption is conclusive that the findings are supported by the testimony. The appeal presents only these questions: Are the conclusions supported by, or are they contrary to, the findings made, and did the court abuse its discretion in the division of the property based upon the findings?

The court found that plaintiff and defendant were married in Utah on January 30, 1912; that they are both residents of Salt Lake county, and have been for more than one year; that there is a minor child, a son of the age of six years, issue of said marriage; that the minor son was, at the date of the trial, in the custody and control of plaintiff, and that plaintiff is a fit and proper person to have the care, custody, and control of said child. The court further found that, since January 1, 1920, defendant, without just cause or excuse, has treated plaintiff in a cruel and inhuman manner, and especially during the month of April 1924, was he cruel to plaintiff, in that without cause or excuse he applied vile epithets toward plaintiff, and called her vile and unprintable names, and upon a number of occasions used force and violence upon the person of plaintiff; that during all of the period since January, 1920, up until the filing of the complaint defendant has willfully and without cause or excuse refused to take plaintiff to any place of amusement or social gathering, or to escort plaintiff to any of such gatherings; that, by reason of said treatment on the part of defendant toward plaintiff, plaintiff has suffered great and unusual mental distress and suffering, and, as a result of said mental distress and suffering, plaintiff has been rendered sick, and her bodily health has been impaired. The court further found that during the marriage relationship, and as a result of the joint labors, efforts, and contributions of both parties, they have acquired certain real property for a home in Salt Lake City. The property is described by metes and bounds in the findings. The court also found that said premises are improved city property, with a substantial residence thereon, and that the property with the improvements is of the value of approximately $ 6,000; that the title to said property is in the name of defendant; and that the same is subject to a mortgage in favor of Zion's Benefit Building Society in the sum of approximately $ 1,675; that plaintiff and defendant, as the result of their joint efforts and labors, have acquired certain household goods and furniture all of which are in the possession of plaintiff, and free of all liens and incumbrances. The court, in its sixth finding found that plaintiff and defendant, by reason of illness and expenses incident to married life, have incurred divers and numerous obligations. These obligations are enumerated in the finding. One is an indebtedness of plaintiff to her father in the sum of $ 750. This indebtedness is evidenced by a promissory note, and secured by certain corporate stock. The court found this stock to be the property of plaintiff. Another is an indebtedness of defendant to his father in the sum of $ 1,265, evidenced by promissory notes, the payment of which is secured by certain corporate stock, and all of which stock the court found to be the property of defendant. In this finding the court enumerates other indebtedness of defendant, amounting in the aggregate to the sum of $ 722. All of the indebtedness was incurred by reason of illness and other expenses incident to the married life of plaintiff and defendant. The court, in its seventh finding, found that the allegations of defendant's counterclaim as to certain alleged cruel acts on the part of plaintiff toward defendant were not sustained by the evidence, and that none of them are true, and that said counterclaim should be dismissed. The court, in its eighth finding found that it is reasonable and proper that plaintiff should be awarded all of the household goods and furniture and the real property, subject, however, to a lien on said real property in favor of defendant in the sum of $ 1,265. In the court's ninth finding the statements of the eighth finding to the effect that it is reasonable and proper that defendant should have a lien on the real property in the sum of $ 1,265 are reiterated, and it is in that finding added that the said sum should be paid to him within three years from the date of the finding, without interest. It is also found in the ninth finding that it is reasonable and proper that plaintiff, in order to secure the payment of said sum of $ 1,265, shall execute a nonnegotiable mortgage without personal liability in favor of defendant on said real estate in the sum of $ 1,265, payable within three years from date, and that, in the event of the sale or transfer of said property by plaintiff, the said sum of $ 1,265 shall be paid out of the first moneys realized by reason of any sale of said property whether sold on the installment plan or otherwise. In its final and tenth finding the court found that defendant is an able-bodied man, capable of earning, and that he does earn, $ 175 per month; that plaintiff had no income or means of support other...