Rackham v. Rackham, 7453

• Decision Date: 27 April 1951
• Docket Number: No. 7453,7453
• Citation: 230 P.2d 566,119 Utah 593
• Parties: RACKHAM, v. RACKHAM.
• Court: Utah Supreme Court

Page 566

230 P.2d 566

119 Utah 593

RACKHAM, v. RACKHAM.

No. 7453.

Supreme Court of Utah.

April 27, 1951.

Grant Macfarlane, Salt Lake City, for appellant.

Arthur Woolley, Ogden, for respondent.

McDONOUGH, Justice.

Plaintiff sued her husband for divorce, and he counterclaimed for divorce and for a division of the property acquired during the marriage. The trial court entered a decree of divorce in favor of defendant, and provided for equal division of the property. On this appeal, plaintiff seeks reversal on two principal grounds: (1) That in the light of the evidence plaintiff was entitled to the divorce, and that there was not sufficient evidence to support the findings and judgment in favor of defendant. (2) That the court made an inequitable division of the property, and erroneously based an award on an oral stipulation to which plaintiff did not assent.

The parties were married in Ogden on May 20, 1919. Eight children were born to them. Several periods of separation occurred, one in 1930, another in 1943 when a divorce action was filed but not prosecuted to judgment, still another in 1946, and finally in 1947 when this action was instituted. The parties solved the financial difficulties which first beset their married life by working together, first in remodeling a modest home. Plaintiff demonstrated her business judgment in purchasing marginal properties during depression years, and having them remodeled into apartments and other income producing units. By the time of the trial in this case, the parties had accumulated assets in excess of $72,000.

Contrary to the contention of the appellant, plaintiff below, the record in this case does not impel findings in favor of the plaintiff on her complaint for divorce. While plaintiff depicted defendant's conduct during the latter years of their married life as that of a man almost constantly drunk and frequently brutal, her testimony lacked corroboration, and it was contradicted in essential particulars by witnesses whom the trial court was entitled to believe. Evidence adduced on behalf of the defendant, including the testimony of a son of the parties, indicated that the accounts related by the plaintiff as to intoxication were grossly exaggerated and that the incidents of cruelty of which she complained were likely imaginary. A few examples will suffice to illustrate why the trial judge was not bound to give full credence to her testimony.

Plaintiff testified that while the parties were visiting in Idaho several years previously, during an altercation with another woman, the defendant twisted her arm and broke it, in the course of compelling her to leave the scene. No one else in the family heard of her arm being broken on such occasion. Defendant denied that he twisted her arm and testified that no such claim was made until some years afterward; that about a month after the Idaho incident involving the altercation with another woman, plaintiff accidentally fell and broke her arm. She herself admitted that her arm was broken on the occasion testified to by the defendant. Plaintiff testified that while the parties were riding in a truck on one occasion, the defendant struck her on the side of the head and broke her nose. She had no medical attention for this alleged injury. Defendant, who was driving, testified that during the course of a quarrel with him, plaintiff attempted to strike him, and that he raised his arm to ward off the blow and the plaintiff's nose was struck causing it to bleed.

The plaintiff further testified that during an argument at a beer tavern the defendant tore off her dress after permitting another woman to insult her by calling her vile names. She stated that another woman was giving undue attention to the defendant and plaintiff told her to leave him alone, whereupon defendant in a rage tore off her dress. None of the other witnesses present on the occasion in question corroborated plaintiff's testimony. Some did not hear any argument at all. None saw the dress torn off and some witnesses testified that defendant, in attempting to pull plaintiff from the scene of the dispute, caused a small tear in plaintiff's dress.

There was some testimony in addition to the evidence of the plaintiff as to defendant's use of intoxicating liquor; but it falls short of corroborating plaintiff to the effect that defendant was intoxicated most of the time. The evidence that he successfully managed a business and during his spare time aided in the repair and remodeling of the buildings owned by the parties, warranted the trial judge in concluding that she exaggerated the drinking episodes. Furthermore, she went to beer taverns with defendant and also with other men. A number of her complaints of brutality on the part of defendant related to times when he was allegedly intoxicated. She testified that she had to call the police on several occasions and that on one occasion defendant was so belligerent that an officer struck him. The police officers called to testify, denied that anyone struck defendant. They further testified that the defendant had called them on several occasions to evict some of the men who, with plaintiff, were allegedly disturbing the peace. Plaintiff also testified that defendant furnished very little for the support of the family and that she had to provide means of support. However, she admitted on cross-examination that defendant had turned over to her his salary checks and that she had cashed them. The checks are in evidence. There is abundant evidence in the record to the effect that plaintiff was away from home for considerable periods of time, during which time she neglected her children and defendant had to cook their meals and do housework in addition to his regular work.

It would unduly prolong this opinion to further detail the evidence of plaintiff relative to defendant's conduct and the contradiction thereof by other witnesses. Suffice it to say that if the testimony of these other witnesses was believed by the trial court, that court was fully warranted in denying her a decree.

The further contention of plaintiff that the findings of the trial court upon which a divorce decree in favor of defendant was entered, lacks support in the record, must likewise be rejected. There is ample evidence in the record to support a finding of misconduct on the part of the plaintiff with at least three other men. It would serve no useful purpose to set out this testimony in detail. However, it is necessary to recite certain facts in order to confront the contentions of plaintiff.

In 1943, defendant found plaintiff in a compromising situation with another man. There is also evidence that she lived in a hotel with a second man for a period of time. Shortly after the 1943 incident, she commenced a divorce action but she confessed these affairs at the time a reconciliation was effected. Counsel for plaintiff argues that by reconciliation and resumption of the marriage relations between these parties, there was an absolute condonation so...