Shaw v. Shaw

• Decision Date: 27 June 1949
• Docket Number: 8846.
• Parties: SHAW v. SHAW et al.
• Court: Montana Supreme Court

208 P.2d 514

122 Mont. 593

SHAW v. SHAW et al.

No. 8846.

Supreme Court of Montana

June 27, 1949

Appeal from Fourth Judicial District Court, Missoula County; C. E Comer, Judge.

Action by Pearl E. Shaw against Curtis B. Shaw and others, for divorce and other relief. From a judgment for plaintiff defendants appeal.

Judgment reversed and cause remanded with directions.

Swanberg & Swanberg, Great Falls, for appellants.

Randall Swanberg, Great Falls, argued orally.

Oskar O. Lympus, Missoula, argued orally, for respondent.

ADAIR Chief Justice.

Appeal by defendant husband from decree of divorce entered against him.

The parties intermarried January 20, 1922. The age of the groom was then 27 years while that of the bride was 44 years. The bride was a widow with two sons aged 21 years and 19 years respectively, they being the issue of a former marriage. No issue was born of the marriage to Shaw.

The husband, Curtis B. Shaw, served overseas in the military forces of the United States during World War I from which service he was honorably discharged on August 19, 1919, under disabilities rated at fifty percent, entitling him to a government pension, first of $40 per month but, upon enrolling for government vocational training, increased to $132.50 per month.

At the time of the marriage Shaw was taking vocational training at a government vocational school located at Helena, Montana, where the couple established their home and resided until in the spring of 1922, when they moved to Aitken, Minnesota. There, with funds and aid supplied him through the United States veterans' administration, Shaw purchased a farm, taking the title in his name alone. He improved and operated this farm until the fall of 1926, when, on account of the poor health of his wife and her wish to return to Montana to be with her aged and ailing mother, Shaw sold his livestock, farm equipment and other personal property at public auction, leased his farm to a tenant and came to Hobson, Montana, where his wife's mother resided.

While in Hobson, the couple jointly purchased a dwelling there which they later sold. The proceeds of such sale they divided equally on a fifty-fifty basis.

While living in Hobson, Shaw also operated a trap line realizing about $2,800 from the pelts sold. Shaw also expended considerable time and labor in repairing, reconditioning and improving seven houses in Hobson, five of which his wife owned and the other two she controlled and managed, having taken them as security for the payment of a loan or loans which she had made to her sister. Without pay, Shaw dug cesspools, repaired chimneys and porches, installed plumbing and water and sewer pipes for these houses and on one he built a new kitchen.

In the fall of 1927 Shaw set about building a service station at Stanford, Montana. His wife, desiring to be cut in on the venture, purchased the lot for the station and the tile of which it was to be constructed, paying therefor and taking title in her name alone. The equipment and stock of merchandise for the business was purchased by Shaw with his separate funds. Shaw operated the station until 1929 when it was sold at a profit. Of the proceeds of such sale the wife received $3,500 for the $1,400 which she had invested and the balance, amounting to $1,500 and representing the amount paid for his equipment and stock of merchandise, went to Shaw.

About 1930 Shaw sold his Minnesota farm for $4,500. This money he deposited in the bank in his separate account and to his credit alone.

In 1931 Shaw filed on a homestead in the Fairfield, Montana, irrigation project, a development under the United States vesterans' administration, on which homestead he and his wife resided until the year 1934, at which time Shaw suffered a rupture for which he was hospitalized for a time at the United States veterans' administration hospital at Fort Harrison, Montana. Upon leaving the hospital, and acting upon the advice of his doctors, Shaw sold his homestead, which stood of record in his name alone, for a consideration of $4,500. This money he deposited in the bank in his separate account and to his credit alone.

In 1935 Shaw, with his own money, purchased a dwelling in the town of Fairfield, taking title in his name alone, and there he and his wife made their home until the fall of 1944.

After selling his homestead Shaw engaged in trucking, commencing on a small scale but gradually building up a substantial business which he subsequently sold for $10,000. With $6,000 of the money so received Shaw purchased a 160 acre irrigated farm near Fairfield, taking title thereto in his name alone. This farm he still owns.

Shaw was next appointed deputy sheriff and town marshal at Fairfield, a town of about 600 inhabitants.

In the spring of 1944 Shaw became seriously ill, bedridden and under a doctor's care for a number of months. In the summer of 1944, when his condition had somewhat improved, Shaw decided to sell his dwelling in Fairfield and accept a position on the Pacific coast as plant guard for the Boeing Aircraft Company.

After entering into a contract to sell the dwelling for $3,625, payable in installments, Shaw received a telegram from the Boeing Company advising him that the position with such company would not be available at that time. Thereupon the plan of removing to the Pacific coast was abandoned and, upon surrendering possession of the dwelling in Fairfield, on September 3, 1944, Shaw left for Texas while his wife left for Missoula, Montana, where one of her sons resided. Upon arriving in Austin, Texas, Shaw obtained employment on the Texas border patrol. After several months he left the patrol and went to Los Angeles, California, where he became a patrolman on the police force of that city. A short time later he was made sergeant of police, which rank he held at the time of the trial.

Immediately after Christmas in the winter of 1944-1945, Mrs. Shaw journeyed to Los Angeles without informing her husband of her intention so to do and there remained for a number of weeks, without either contacting her husband or informing him that she was in California. Her excuse was that she was unable to locate him. Although admitting she knew he was then employed as a patrolman she made no inquiry of the police department to ascertain his whereabouts. Her excuse: 'I was afraid of getting lost, and everything was new and I was all alone.'

In the summer of 1945 Shaw returned to Montana for a time.

In July 1945 he visited his wife in Missoula, Montana. He also took her to Hamilton, Montana, where they had dinner.

In the first part of August 1945 Shaw and his wife were together in Kalispell, Montana. The wife testified she arrived in Kalispell on the evening of August 3, 1945. On her direct examination she testified: 'Q. What time of day was that? A. It was 8:00 o'clock in the evening. Q. Did you spend some time with him there? A. I stayed all night till the next day waiting for the bus.'

While in Kalispell on this occasion Shaw opened his strong box in the presence of his wife, taking certain papers therefrom and handing them to his wife who testified that she then saw in the box some series 'E' U.S. War Bonds and certain certificates for designated shares of the corporate stock of the Anaconda Copper Mining Company and the International Harvester Company. The bonds and certificates were issued to and stood in Shaw's name alone.

Shaw then had considerable other property in Montana, standing in his name alone, including a 1940 model Chrysler automobile; certain loans made to various borrowers from his own money; the contract for the purchase of his dwelling in Fairfield on which more than $3,300 was then unpaid and to become due; a checking account of $8,496.64 in the Conrad National Bank of Kalispell, Montana; another checking account in the First National Bank of Great Falls, Montana; the 160 acre irrigated farm near Fairfield and the landlord's share (one-third) in the crops harvested on said farm.

On August 18, 1945, being two weeks after they were together in Kalispell and following the husband's return to Los Angeles, the wife, Pearl E. Shaw, as plaintiff, filed in the district court of Missoula county, Montana, this suit for divorce naming as defendants her husband, Curtis B. Shaw, The Conrad National Bank of Kalispell, and The First National Bank of Great Falls.

The complaint alleges: The residence of plaintiff (paragraph I); the marriage (paragraph II); that no issue was born of the marriage (paragraph III); that defendant 'has been guilty of cruelty and bodily injury to and toward the plaintiff * * * existing and persisted in for a period of more than one year before the commencement of this action * * *.' (Paragraph IV, emphasis supplied.)

Upon the filing of the complaint, the district court, without notice to any of the defendants, issued a restraining order impounding the husband's credits, bank accounts, money, papers and other property then situate in Montana.

Thirteen days later (August 31, 1945) the district court, without notice to any of the defendants, issued a second order making permanent its restraining order of August 18th and appointing a receiver to collect, receive and take into his custody the property so owned by and standing in the name of the defendant husband.

The receiver qualified and took charge of the husband's property and withdrew his funds from the defendant banks and deposited same to the receiver's credit in the First National Bank of Missoula, Montana. Other funds belonging to the husband were afterwards deposited to the receiver's credit in the First National bank of Fairfield, Montana.

The first notice the defendant husband had of the suit was when checks written by him on...