Read v. Read

• Decision Date: 02 December 1904
• Docket Number: 1583
• Court: Utah Supreme Court
• Parties: LILA READ, Respondent, v. CHARLES READ, Appellant

78 P. 675

28 Utah 297

LILA READ, Respondent, v. CHARLES READ, Appellant

No. 1583

Supreme Court of Utah

December 2, 1904

Appeal from the Third District Court, Salt Lake County,--Hon. W. C Hall, Judge.

Action for divorce. From the part of the decree awarding alimony the defendant appealed.

AFFIRMED.

Messrs Sutherland, Van Cott & Allison for appellant.

Messrs. Stephens & Smith for respondent.

The findings of fact by the trial court will not be set aside unless made clearly against the preponderance of the evidence. Henderson v. Adams, 15 Utah 30, 168 U.S. 573; McCornick v. Mangum, 20 Utah 20; Hannaman v. Karrick, 9 Utah 236; Dooly Blk. v. Transit Co., 9 Utah 31: Whitesides v. Green, 13 Utah 341; Watson v. Mayberry, 15 Utah 265; Blish v. McConick, 15 Utah 188; McKay v. Farr, 15 Utah 261; Dwyer v. Mfg. Co., 14 Utah 339; Short v. Pierce, 11 Utah 29.

McCARTY J., delivered the opinion of the court. BASKIN, C. J., and BARTCH, J., concur.

OPINION

McCARTY, J.

STATEMENT OF FACTS.

Plaintiff brought this action to obtain a decree of divorce on the ground of desertion. The facts in the case are about as follows: Plaintiff, who is 37, and defendant, who is 57 years of age, intermarried September 12, 1888, and ever since said marriage have resided in Salt Lake City, Utah. No children have been born of said marriage. Defendant is engaged in mining, and is employed by two different mining companies, each of which pays him a monthly salary of $ 100. In addition to the compensation thus received as salaries, he is occasionally employed as an expert to examine mines, for which in the past he has received on an average of $ 100 per year. He speculates quite extensively in mines and mining stocks, and has made some money in that business. At present he is one of the executors of a large estate, from which he will be entitled to receive as compensation for his services, when the estate shall have been closed and settled, something over $ 1,200, and, according to his own admission and that of his counsel, may receive twice that amount. He owns a ranch in Boise Valley, State of Idaho, consisting of 370 acres with a water right sufficient for the needs of the ranch. The ranch cost him $ 3,000, but there is evidence in the record that he valued it at $ 25 per acre. Defendant, however, testified, that he would accept $ 2,500 for the entire ranch. He owns a third interest in a piece of real estate in Salt Lake City valued at from $ 3,000 to $ 4,000, and is the owner of capital stock in various mining companies, which stock, according to his own testimony, aggregates in value about $ 4,000, but the testimony of plaintiff shows that before the separation he placed a much higher valuation on the mining stock than that given by him at the trial. At the time of the separation his indebtedness consisted of an overdraft at the bank of $ 130, which has since, as a result of certain speculations in which he engaged, increased to $ 2,240. Plaintiff is the owner of, and has in her own name, the following property: One-half interest in certain real estate upon which there is a modern dwelling house of 11 rooms, situate in Salt Lake City. This entire property, a half interest of which was given to plaintiff by defendant at the time of their marriage, is valued at about $ 16,000. Plaintiff also owns 50 shares of the capital stock of the Daly-West Mining Company, which stock at the time of the trial was worth $ 1,875, from which she received a monthly dividend of $ 32.50. She owned other mining stocks valued at $ 3,750, making the total valuation of her property $ 9,912.50. Her entire indebtedness at the time of the trial was $ 433. The record shows that residence property, such as that owned by plaintiff, pays but a very low interest on the capital represented by the investment, and frequently no revenue whatever is derived from the property. The trial court awarded plaintiff a decree of divorce on the ground of desertion, and in addition to the property claimed by her, and hereinbefore enumerated, gave her a portion of the household furniture. The court found generally "that the solvent credits of defendant are about equal to the value of plaintiff's property." and further found "that defendant is an able-bodied man, and has an earning capacity and is able to earn from $ 250 to $ 300 per month," and "that $ 70 per month is a reasonable sum to be paid to plaintiff by defendant as her alimony until further...