Rhodes v. Rhodes

• Decision Date: 24 April 1962
• Docket Number: No. 107,107
• Citation: 370 P.2d 902
• Parties: Charles Herbert RHODES, Appellant, v. Marilyn L. RHODES, Appellee.
• Court: Alaska Supreme Court

Page 902

370 P.2d 902

Charles Herbert RHODES, Appellant, v. Marilyn L. RHODES, Appellee.

No. 107.

Supreme Court of Alaska.

April 24, 1962.

Wendell P. Kay, Anchorage, for appellant.

Theodore F. Stevens, Anchorage, for appellee.

Before NESBETT, C. J., and DIMOND and AREND, JJ.

AREND, Justice.

This appeal is prosecuted by the husband in a divorce action. He questions the award of custody of the children of the parites to the wife and the property division made by the trial court. We shall consider the custody issue first.

The wife, as plaintiff below, sought a divorce on grounds of incompatibility and asked for custody of the five children born of the marriage. The husband countered with an amended answer and cross-complaint, likewise asking for a divorce on grounds of incompatibility and for custody of the children. Both parties allege that they are fit and proper persons to have the custody of the children and each denies that the other is such a person. At the time of the trial, November 1960, the children ranged in age from four to twelve years, the three older ones being boys.

The court in its findings of fact found, among other things, that a gross incompatibility of temperament existed between the parties, harmful to them and the children, and that, while both parents were fit to have custody, 'under the circumstances of this case, the welfare and interests of the children would best be served by awarding their sole custody to the mother,' and then concluded that the wife was entitled to a decree of divorce and sole care and custody of the children. A decree was entered accordingly, reserving to the husband, however, the right of reasonable visitation. ¹

Section 56-5-13 A.C.L.A.1949 vests jurisdiction in the trial court, in a case of annulment or divorce, to provide for the care and custody of minor children as it may deem just and proper. This places a grave responsibility upon the court and at the same time gives it a broad discretion. In determining the custody of children the trial court should be guided by the rule of quite general application that the welfare and best interests of the children should be given paramount consideration. ² Also, consideration should be given to the desirability of keeping the children of the family together so that they may enjoy the normal condition of childhood of growing up together as brothers and sisters. ³

Having in mind the foregoing legal principles and the fact that the children in this case are all of an age when they need each other's company and the love and attention of a mother in the home, and having gleaned from an extensive record that the plaintiff knows the needs of her children and is intent upon being in the home with them and administering to their needs so that they may be able to grow up into healthy, good, normal individuals, we cannot say, as contended by the defendant, that it was against the clear weight of the evidence ⁴ for the trial court to find that

'The plaintiff is a fit mother, the defendant is a fit father; however, under the circumstances of this case, the welfare and interests of the children would best be served by awarding their sole custody to the mother, plaintiff herein.'

Nor can we say that the trial court abused its discretion in awarding the sole care and custody of the children to the mother; therefore, the decree will not be disturbed in that respect. ⁵

The second principal issue raised by the defendant is that the court erred in awarding a very substantial and grossly unfair amount of the property of the parties to the plaintiff in the abusence of any prayer by her for the property settlement decreed and without sufficient evidence. Important as this issue would seem to be, the defendant has seen fit to treat it in only two pages of a twenty-eight-page brief, and the arguments he advances in support of his position are for the most part conched in generalities not applicable to the particular circumstances of this case.

In her complaint, the plaintiff alleged that 'there are property rights to be adjudicated' by the trial court, and then set forth the equity of the parties in the family home, on which there is owing a balance of about $26,500, and the primting business operated by the defendant. These allegations of the complaint are admitted by the defendant and in his cross-complaint he, in turn, alleged that 'there are property rights in real and personal property to be adjudicated by the Court' and prayed for a settlement of those property rights. It is true that the plaintiff did not in her prayer for relief ask for a judicial division of the property of the parties, but she did ask for such other and further relief as the court might deem equitable and just in the premises. Furthermore, we note that in their opening statement at the trial counsel for both parties informed the court that there were property rights which would have to be adjudicated.

In our opinion, such a state of the record would alone have justified the trial court, once having assumed jurisdiction in equity as it did here, to afford complete relief, including the adjudication of the property rights involved. ⁶ However, in Alaska we have an even more certain guide, for Civ.R. 54(c) specifically provides:

'A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment. Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.' [Emphasis supplied. ⁷

We conclude that the court had full power to adjudicate the property rights of the parties to this action even though the plaintiff had not specifically prayed for such relief. That leaves the question of whether the award of certain property to the plaintiff was in a fair and just amount.

The record discloses that the property of the parties was practically all acquired after marriage, and by their joint efforts ⁸ in the sense that the plaintiff during the first years of the marriage worked for others or helped her husband in his business from time to time, and at other times she contributed by bearing and rearing the five children of the marriage and maintaining the home. She may not always have measured up to the high standards of frugality, cleanliness, order and punctuality expected by the husband, but she appears to have worked at it rather consistently for thirteen years.

The principal items of property acquired during the marriage consisted of a dwelling house, with a rental unit, in the rear, of an appraised value of $26,000 subject to a mortgage of about $5,000; the home of the parties appraised at $29,500 and mortgaged for $28,000; a vacant downtown city lot appraised at $25,000; a five-acre homesite worth about $2,500; a half interest in a four-acre tract, which interest was purchased for $750.00 in 1960 but the actual value of which does not appear in the record; a half interest in a periodical publication, valued at about $2,500; a 1958 Chevrolet Suburban automobile; and the Anchorage Printing Company, being all personalty, of which the parties were joint owners and from which they derived an annual gross taxable income of about $22,000 ⁹ during 1958 and 1959, according to the plaintiff's testimony.

The court found the property interests of the parties to be as above set forth and that the plaintiff was entitled to be awarded the $26,000 dwelling house and rental unit and the family home; that she should also receive from the defendant the sum of $33,000, payable at the rate of $400 per month, to enable her to discharge the encumbrances against these properties; and that the remainder of the property above listed should be awarded to the defendant, the realty portion thereof to be subject to a lien to secure payment of the $33,000 mentioned. ¹⁰ These findings were made the basis for the conclusions of law and decree entered by the court below. The defendant charges that it was error for the court to award real property and a money judgment for $33,000, secured by a lien, to the plaintiff, since there was no substantial evidence to support such an award and because the award was contrary to the weight of the evidence.

All property of the parties, both separate and joint, is before the court for disposition in a divorce action. It is so provided by section 56-5-13 A.C.L.A.1949. The sixth subdivision of the statute empowers the court to divide the property between the parties 'in such manner as may be just, and without regard as to which of the parties is the owner of such property * * *.' Here, as in the case of child custody, the matter is left to the broad discretion of the court, and we will not reverse except upon a showing of abuse of discretion. ¹¹

In view of the record the property division appears to us to be inequitable and unfair. The husband had to pay over to the wife every month in cash the sum of $625 as child support, plus $400 in reduction of the indebtedness against the two pieces of real estate awarded to her. This money has to come out of a business for which the net monthly income was never established at the trial.

If, as Mr. Rhodes contended in quasi argument to the court as the property division was pronounced from the bench, ¹² the actual annual income from the business was only $14,000 and the business itself was $50,000 in debt, then the property division as it now stands could well leave the defendant without any money for his own living expenses and lead to insolvency and even ultimate loss of the business to the detriment of both parties and the children.

We realize that it was the responsibility of the defendant and his counsel, who represented him at the trial, to call these matters to the attention of the court by the timely production of evidence. But where a miscarriage of justice seems so...