Schultz v. Schultz

• Decision Date: 05 July 1933
• Docket Number: 1805
• Citation: 46 Wyo. 121,23 P.2d 351
• Parties: SCHULTZ v. SCHULTZ
• Court: Wyoming Supreme Court

23 P.2d 351

46 Wyo. 121

SCHULTZ v. SCHULTZ

No. 1805

Supreme Court of Wyoming

July 5, 1933

APPEAL from the District Court of Weston County; Sam M. Thompson Judge.

Suit for divorce by Mabel E. Schultz against Harold B. Schultz. Decree for plaintiff, and defendant appeals.

Reversed.

The cause was submitted for the appellant on the brief of Raymond & Diefenderfer of Newcastle.

The evidence in this case was insufficient to sustain a decree of divorce and alimony. Allowance of alimony is within the discretion of the court, but if unjust is reviewable on appeal. 19 C. J. 249; Lovejoy v. Lovejoy, 36 Wyoming 379; VanGelder v. Van-Gelder (Wash.) 112 P. 86. Alimony is not granted as a matter of course, nor as a penalty. State v. Court, (Wash.) 104 P. 771. An abuse of discretion would be reviewed on appeal. Mann v Mann, 15 P.2d 478; 19 C. J. 256; 1 R. C. L. 930, 932. It is contended that the judgment was inequitable and unjust, in that there was an unfair division of property. The evidence was insufficient to sustain any ground for divorce. Some of the property set over to the plaintiff did not belong to either of them. The division of property provided by the decree compels appellant to pay out over $ 500.00 more than his property is worth and leaves him destitute and bankrupt. Moreover, it is unfair to creditors of appellant. There is not the slightest reason why any preference should have been shown to the wife. Under the facts of this case, the husband is the one who should have been favored. The entire judgment should be reversed and the case remanded for retrial.

The cause was submitted for respondent on the brief of Preston T McAvoy of Newcastle.

In this case, the decree directed a division of personal property and transfer of the real estate to respondent. The general grounds of plaintiff's allegations were cruelty, to which defendant pleaded no defense. In divorce proceedings, it is competent for the court to assign the homestead to the innocent party, either absolutely or for a limited period. The doctrine of alimony is based upon the common law obligation of support. 19 C. J. 204. The court had jurisdiction to adjust the property rights of the parties. 9 R. C. L. 445. Divorce is prima facie prejudicial to the public interest. Hawley v. Hawley (Ore.) 199 P. 589; Van Dommelen v. Van Dommelen (Mich.) 187 N.W. 324. Marriage is contractual in its inception. It is the source of the family, the safeguard of public and private morals. Dalrymple v. Dalrymple, 17 Eng. Rul. Cas. 10; State v. Duket (Wisc.) 63 N.W. 83; Coy v. Humphreys (Mo.) 125 S.W. 877. Marriage and divorce may be regulated by legislature. Barrington v. Barrington (Ala.) 89 So. 512; Closson v. Closson, 30 Wyo. 1. The marriage contract differs from others in that it may not be dissolved. Maynard v. Hill, 125 U.S. 190; Lyon v. Lyon, (Okla.) 134 P. 650; Jones v. Jones (Ore.) 117 P. 414. While it is the policy of the law to sustain the marriage relation, it is the duty of courts to decree the dissolution where the statutory conditions are clearly met by convincing evidence. Allfree v. Allfree, (Mo.) 162 S.W. 650; Meyer v. Meyer (Mo.) 138 S.W. 70. Cruelty and indignities are grounds for divorce. 35-108 R. S. 1931. Hanks v. Hanks, 27 Wyo. 65. Appellant argues that the creditors should have been paid from the property of the parties as necessary expenses of the family. The issues can be no broader than the pleadings. Mini v. Mini (Cal.) 45 P. 1044; Westphal v. Westphal (Minn.) 83 N.W. 988; Hoernig v. Hoernig (Wisc.) 85 N.W. 346. All material allegations of the petition were established by the evidence. Rules governing the weight and admissibility of evidence are the rules of the civil court. Collenti v. Tranchina 91 So. 818; Macomber v. Macomber (R. I.) 87 A. 170; Lamb v. Lamb (Va.) 101 S.E. 223. All intendments are in favor of the decree as rendered. Jarrard v. Jarrard (Wash.) 198 P. 741. The appellate court will interfere only for abuse of discretion. Dillon v. Dillon (Cal.) 187 P. 27. Alimony is allowed in lieu of maintenance. Greene v. Greene (Nebr.) 68 N.W. 947; Huffman v. Huffman (Ore.) 86 P. 593. Alimony is distinct from wife's equity in property. The Court had under the statutes, authority to determine property rights. Chapter 35 R. S. 1931; Arp v. Jacobs, 3 Wyo. 489. Alimony is within the broad discretionary powers of the trial court. Lovejoy v. Lovejoy, supra. Alimony is predicated upon husband's ability, social standing of the parties, wife's needs considered in connection with her separate income. Romaine v. Chauncey (N. Y.) 29 N.E. 826; Lovegrove v. Lovegrove (Va.) 104 S.E. 804; Kelley v. Kelley (Ky.) 209 S.W. 335. Some latitude must be allowed the trial court in the exercise of discretion. Mahoney v. Mahoney, 43 Wyo. 157. Respondent submits that the decree of the trial court should be affirmed.

RINER, Justice. KIMBALL, C. J., and BLUME, J., concur.

OPINION

RINER, Justice.

The respondent, as plaintiff in the District Court of Weston County, brought suit for a divorce from the appellant as defendant, and obtained a decree in her favor. This proceeding, by direct appeal, is brought to review the record made and the decree thus rendered.

So far as can be gathered from the allegations of plaintiff's petition which are somewhat voluminous, the statutory (Sec. 35-108, R. S. 1931) grounds relied upon by her to obtain the relief she sought are (1) that the defendant has been guilty of extreme cruelty toward the plaintiff and (2) that he has offered such indignities to her as to render her condition intolerable. The specific acts pleaded to establish these grounds are, briefly, the excessive and abusive use by the defendant of sexual relations with his wife, that he had used obscene language to plaintiff, that he has abused and upbraided her, and that he advertised in the local newspapers that he would not be responsible for any debts incurred by her as his wife, thereby implying that she was a spendthrift.

The proof is that the parties were married December 16, 1924, and there are no children of the marriage. The decree in question was entered on the 19th day of September, 1932. The only evidence submitted to establish the statutory ground of divorce above mentioned seems to be: The answer of the plaintiff on the request of her counsel "Tell the court why you didn't get along,"--"We couldn't get along because he said I never did anything to help him and we couldn't get along because he was too sexually minded, and that was the case, I guess." She testified, also, on cross-examination, that the situation between herself and her husband had reached the point of incompatibility, rendering it quite impossible for the parties to live together any more and that to continue the marriage relationship would be very bad for both. There appears to have been no proof at all of obscene or abusive language used by the husband toward the wife. It was established that, some three weeks before the petition in the case was filed and after the parties had separated, the defendant put a notice for one issue in a local newspaper, stating, in effect, that in the future he would not be responsible for debts contracted by her. She testifies that this action on his part caused her to feel badly. It was also proven that the husband, after the divorce action had been commenced, had served a notice upon some neighbors warning them not to trespass upon lands owned by him where she was living, her testimony being that they came to help her, although they were not friendly towards him. Considerable proof was furnished relative to hardships borne by the wife, such as frequently result from farm or ranch life, where the parties have very little of this world's goods, and where both have been afflicted with ill health.

In our judgment, the evidence submitted is wholly insufficient to authorize the court to decree a divorce of the parties. Public policy requires that there be no severance of the marital relations without adequate cause and satisfactory proof thereof. Mere general statements of misbehavior or conclusions of the parties will not suffice. The court must be placed in possession of the facts of the case, and these facts must fairly establish a statutory ground of divorce, in order to invoke the great judicial power to rend asunder the family relation, --a relation on which civilized society so greatly relies for its support.

In Bonham v. Bonham, 25 Wyo. 449, 172 P. 333, 335, this court, applying the principle 'that any unjustifiable conduct which so grievously wounds the mental feelings of husband or wife, or utterly destroys his or her peace of mind, as to seriously endanger life or impair bodily health, or which utterly destroys the legitimate ends and objects of matrimony, constitutes cruelty, although no physical or personal violence may be inflicted or even threatened, or reasonably apprehended," held "that mere austerity of temper, petulance of manner, rudeness of language, a want of civil attention, even occasional sallies of passion, if they do not threaten bodily harm, do not constitute cruelty."

12 R. C. L. 253, § 12, states that:

"When an attempt is made through the courts to undo a marriage, the state becomes in a sense a party to the proceedings, not necessarily to oppose but to make sure that the attempt will not prevail without sufficient and lawful cause shown by the real facts of the case, nor unless those conditions are found to exist at the time the decree is made...