Rogers v. Rogers

• Decision Date: 08 July 1949
• Docket Number: 8866.
• Parties: ROGERS v. ROGERS.
• Court: Montana Supreme Court

209 P.2d 998

123 Mont. 52

ROGERS v. ROGERS.

No. 8866.

Supreme Court of Montana

July 8, 1949

As Amended October 1, 1949.

Rehearing Denied Oct. 6, 1949.

Appeal from Second Judicial District Court, Silver Bow County; T. E Downey, Judge.

Action for divorce by James Rogers against Myrtle A. Rogers who filed a cross-complaint. From a judgment for plaintiff, the defendant appeals.

Judgment affirmed.

Lyman H. Bennett, Jr., Virginia City, for appellant.

Charles L. Zimmerman, Butte, for respondent.

FREEBOURN Justice.

This is an action for divorce, appealed from the second judicial district of the state of Montana, in and for the county of Silver Bow, the Honorable T. E. Downey, district judge presiding.

Plaintiff husband had judgment and defendant wife appeals.

The complaint, after necessary allegations of marriage and residence, alleged there was no issue and 'plaintiff prior to said marriage and subsequent thereto acquired and owned as his separate property a bank account in the Metals Bank and Trust Company, of Butte, Montana, of the value of $2,040.00 and certain stocks and bonds of the value of approximately $2,200.00, and certain real estate, situated in Madison County, State of Montana.'

It alleged extreme cruelty, a course of conduct, in the words of the statute, followed by allegations of specific acts constituting the same. Among such acts alleged were, 'That during the latter part of August, 1946, the said defendant without any cause or reason therefor, left the home occupied by the parties, withdrew from the bank the aforesaid bank account and all thereof, and took with her the aforesaid bonds and stocks, all of which was against the will and without the consent of the plaintiff.'

The prayer of the complaint asked that plaintiff be awarded an absolute divorce; '2. That it be ordered, adjudged and decreed that plaintiff is the owner of the personalty and realty herein described and each and every part thereof and that defendant be ordered to execute and deliver instruments to plaintiff resting the title thereof in said plaintiff; 3. For such other and further relief as to the court may seem meet and equitable in the premises.'

Defendant filed her answer and cross-complaint admitting the allegations of the complaint as to morriage, residence and no issue. It denied all else in the complaint.

In a first affirmative defense the answer alleged the issues as to the realty mentioned in the complaint were being litigated in an action between the same parties in the district court of the fifth judicial district of the state of Montana, in the county of Madison.

In a second alleged affirmative defense, cross-complaint and counterclaim, the answer set up a cause of action for divorce on the ground of extreme cruelty. A decree of absolute divorce and permanent alimony in the sum of $100 per month were asked.

By reply plaintiff admitted the pendency of the action, as to the realty, in Madison county; the allegations of marriage and no issue. It denied everything else. The cause was tried in the lower court on November 24, 1947.

After findings of fact and conclusions of law made, the court in its decree: (1) awarded plaintiff an absolute divorce; (2) awarded plaintiff judgment against defendant in the amount of $2,040; (3) quieted title to the stock in plaintiff; and (4) ordered defendant to transfer and convey such stock to plaintiff.

The evidence is scant, but we draw from it that James Rogers plaintiff, had for over 30 years, worked as a miner in the Butte mines; that he married Myrtle Rogers, defendant, then a waitress and sixteen years of age, in 1932; that at her request, and at his expense, he sent her to the Butte Business College, Montana University, Drake University, and the University of California; while she was away he regularly sent her money and gave her expensive rings; when she left him she took all available cash, except a few dollars, all evidence of title to his property, certain stocks, a deed to the ranch and bank book.

He testified he had put all his property in her name, never intending to give it to her. With the money secured from disposing of his real property near the Five Mile, at Butte he purchased the ranch at Silver Star, in Madison county, Montana. He placed the title in his wife's name. He understood she was to return the property to him if anything ever happened or if he should request it, to which she agreed. Defendant denied such understanding. She said she was sixteen years of age when married and worked at that time as a waitress; that, after marriage she attended the Butte Business College, Montana State University for three years, Drake University four years and the University of Colifornia for six weeks; that plaintiff assisted her financially with her education. Her testimony, in part, was: 'I was entirely dependent upon his earnings until the end of 1941. Afterward I worked on several newspapers and in the Belgian Embassy. My husband bought me several fur coats and diamond rings. I now speak several languages and live in Chicago, Illinois, where I work as a secretary at a substantial salary. The ranch at Silver Star had formerly belonged to my step-mother and the ranch was purchased with the proceeds from the condemnation proceedings. My husband took charge of the condemnation proceedings. At that time I was attending the University of Montana. The land that was condemned had been owned by the Rogers family for years. I left my husband, without his knowledge or consent, about October, 1946. All of his property had been placed in my name. We had a few hundred dollars at the ranch and I took all but $30.00 or $40.00. I also have spent almost all of the $2,040.00, that was in the Metals Bank, for my own purposes. I withdrew the same without Mr. Rogers knowing about it. I left the stocks in a rooming house in Butte. They belonged to my husband. I intended to give my husband one-half of the property including the money in the bank and I wrote letters to my step-mother too such effect, but I have not done so. The stocks are in my name, but I will endorse them and turn them over to him if produced, but I do not have them in my possession. Most of the money in the bank was earned and inherited by Mr. Rogers.' In answer to repeated questions defendant refused to say if she had put $1.00 or more in the bank account.

Appellant has set out six specifications of error in her brief. We have considered all of these and find Nos. 1, 2 and 3, based upon the findings of fact and conclusions of law without merit because such findings of fact and conclusions of law are not incorporated in the decree. Defendant's rights are in no way prejudiced since the decree and judgment is silent as to such findings of fact and conclusions of law. There is no adjudication to be questioned upon appeal when not contained in the decree. Lewis v. Lewis, 109 Mont. 42, 94 P.2d 211.

Findings of fact and conclusions of law do not constitute any part of the judgment but merely a foundation therefor. Galiger v. McNulty, 80 Mont. 339, 260 P. 401; State ex rel Monteath v. District Court, 97 Mont. 530, 37 P.2d 567; Lewis v. Lewis, supra.

Neither party questions that part of the decree granting plaintiff an absolute divorce.

In the three remaining specifications of error appellant contends the court erred in (a) quieting title in plaintiff to the stock; (b) ordering defendant to transfer and convey to plaintiff the stocks; and (c) adjudging that plaintiff recover from defendant the sum of $2,040.

In disposing of the first two contentions we call attention to section 9191, R.C.M.1935, which provides: 'The court must, in every stage of an action, disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the parties, and no judgment shall be reversed or affected by reason of such error or defect.'

No substantial right of appellant was affected by the court quieting title to the stocks in plaintiff and in ordering defendant to transfer and convey them to plaintiff.

According to the transcript defendant testified: 'I left the stocks in a rooming house in Butte. They belonged to my husband. The stocks are in my name, but I will endorse them and turn them over to him if produced, but I do not have them in my possession.'

The defendant made no claim to the stocks and stated they belonged to plaintiff. Hence there could be no harm in quieting title in plaintiff and ordering such stock assigned to him. If the defendant did leave the stock, valued at $2,200, in some unnamed rooming house in Butte, she could still have assigned it to plaintiff, according to counsel, by making an independent assignment. She has signified her willingness to do almost this exact thing. She could suffer no harm by the court directing her do that which she could do and which she said she was willing to do.

This leads then to the question, did the court commit prejudicial error in adjudging that plaintiff recover from defendant the amount of $2,040?

This is the amount of the bank account at the Metals Bank which the testimony showed stood in defendant's name but was money derived from his earnings and sale of land, under condemnation proceedings, long in the Rogers family, and inherited by plaintiff from his relatives. The court could have found from the evidence before it that no part of such bank account had been deposited by defendant, as her own separate property; that she had no interest in it; that at defendant's suggestion the money was deposited in her name with the understanding that she would have it in the event of plaintiff's death; that she would have no present interest in it and would upon request return all of it to plaintiff; that she would...