Powell v. Powell

• Decision Date: 12 January 1912
• Court: Washington Supreme Court
• Parties: POWELL v. POWELL.

119 P. 1119

66 Wash. 561

POWELL v. POWELL.

Supreme Court of Washington

January 12, 1912

Department 1. Appeal from Superior Court, Benton County; O. R. Holcomb Judge.

Action by Lula Powell against James Powell for divorce. From a judgment granting respondent a divorce on a cross-complaint complainant appeals. Affirmed.

J. W. Callicotte, for appellant.

Andrew Brown, for respondent.

FULLERTON J.

The appellant brought this action against the respondent for a divorce and for such division of the property of the parties as to the court should seem meet and just. In her complaint she set forth the statutory requirements as to residence and sought a divorce on the grounds of cruel treatment and personal indignities, rendering her life burdensome. The respondent answered, denying the allegations of cruel treatment, and by a cross-complaint sought a divorce from the appellant on grounds similar to those set forth in the complaint. He did not, however, allege residence in the state for one year, nor residence in the county in which the action was brought. The appellant moved against the complaint asking that certain paragraphs therein be made more definite and certain. The motion was overruled, whereupon she replied putting in issue the new matter in the complaint. A reference was thereupon had for a report upon the facts and law of the case. The referee took and reported the evidence into court, and recommended that neither party be granted a divorce. Each of the parties thereupon moved the court to set aside the referee's findings in so far as he recommended that no divorce be granted. The court reheard the case and granted a divorce to the respondent, awarding the appellant her costs expended in the proceedings, $75 for attorney's fees, and $20 per month alimony, and awarded to the respondent the corporeal property held by them in community. From the decree this appeal is prosecuted.

The appellant first assigns that the court erred in overruling her motion to make the respondent's cross-complaint more definite and certain. It is assumed by the appellant that the paragraphs complained of made charges of adultery against her and she claimed that she was entitled to a statement of the times, places, and persons at which and with whom the adultery was committed. But we think the cross-complaint sufficiently certain. It contained no charge of adultery. True, it alleged that the appellant left her home at various times and remained away for weeks at a time, and would give the respondent no information on her return as to her whereabouts, or as to the persons with whom she associated while gone. It may be that adultery could be inferred from these facts, but they contain no definite charge of adultery, and the respondent was not obligated to make them more definite and certain in that respect.

It is next asserted that the court erred in granting a decree of divorce to the respondent, since he did not allege that he had been a resident of the state of Washington for more than one year prior to filing his cross-complaint, and did not allege that he was a resident of the county in which the action was brought. But this allegation was not necessary to support the cross-complaint. Whe...