Silverness v. Silverness

• Decision Date: 09 April 1965
• Docket Number: No. 39362,39362
• Citation: 134 N.W.2d 901,270 Minn. 564
• Parties: Wesley A. SILVERNESS, Respondent, v. Beatrice E. SILVERNESS, Appellant.
• Court: Minnesota Supreme Court

Page 901

134 N.W.2d 901

270 Minn. 564

Wesley A. SILVERNESS, Respondent, v. Beatrice E. SILVERNESS, Appellant.

No. 39362.

Supreme Court of Minnesota.

April 9, 1965.

Rehearing Denied May 19, 1965.

Syllabus by the Court

1. Where evidence disclosed that in 1951 defendant left plaintiff in Minnesota to return to her home in Chicago, there to reside with her mother and brother; that thereafter she repeatedly advised plaintiff that she would never return to live with him and intended to obtain a divorce; that plaintiff had traveled to Chicago to induce her to return to live with him but that defendant had refused to do so; and that when defendant separated from plaintiff and decided to seek a divorce her decisions therein appear to have been made with a rational mind when she had not been adjudged mentally incompetent, Held such evidence adequate to sustain finding that defendant had deserted plaintiff for more than one year preceding commencement of plaintiff's action for divorce on grounds of desertion, and fact that in 1957 defendant was confined to hospital for mental treatment would not constitute defense thereto.

2. Where defendant left plaintiff in 1951 and since that time until 1957 resided with her mother and brother in Chicago, who had provided her with home and independent economic status; where during such separation plaintiff had continued to reside in Minnesota and to rear the son of the parties; where during such interval plaintiff had acquired by his sole efforts and contributions real property of the approximate value of $9,000, which constituted all of his assets; and where plaintiff's present income is approximately $8,500 per annum, Held court did not abuse its discretion in denying alimony to defendant and in awarding plaintiff the real property described.

3. Held, court's award of $150 as attorney's fees to defendant's counsel was not an abuse of discretion. Latter is awarded $350 additional attorney's fees for his services in connection with this appeal.

Martini, Harper & Gustafson, Duluth, for appellant.

Leo J. Burak and Alfred J. Weinberg, Duluth, for respondent.

THOMAS GALLAGHER, Justice.

This is an appeal from an order wherein plaintiff, Wesley A. Silverness, was given judgment for a divorce from defendant, Beatrice E. Silverness. The order dated December 6, 1963, was based in part upon the following finding:

'That defendant, disregarding her duties as a wife, willfully deserted said plaintiff in the year 1951 and has ever since that time and for more than one year immediately preceding the commencement of this action, uninterruptedly continued said desertion without cause on the part of this plaintiff.' See, Minn.St. 518.06.

The decree denied defendant alimony but directed that plaintiff pay to the Department of Public Welfare of the State of Illinois a certain sum owing for hospital services rendered to defendant prior to October 15, 1963. In addition, it awarded plaintiff the homestead of the parties in Duluth, certain furniture and household goods therein, and a 1955 Chrysler automobile. It further awarded plaintiff some 30 acres of unimproved land in St. Louis County and directed that he pay $150 for attorney's fees incurred by the defendant. In a memorandum attached to the order for judgment, the trial court stated:

'It appears from the evidence that the defendant, Beatrice E. Silverness, showed some symptoms of mental disturbance as far back as 1950 * * *. In 1951, on her physician's recommendation, she was hospitalized at St. Mary's Hill in Milwaukee, Wisconsin. Subsequent to her release from St. Mary's Hill, she went to live with her mother and brother in Chicago, Illinois, and never returned to reside with plaintiff.

'At that time, Thomas K. Silverness, the parties' minor son * * * was onlyh twelve years of age. He was left with plaintiff who assumed his care and custody and he so lived with plaintiff until he went into the armed service.

'In July, 1953, plaintiff and his counsel, Leo J. Burak, arranged a conference with defendant and her brother * * * in Chicago * * * for the purpose of trying to persuade befendant to return to plaintiff and their home in Duluth. Defendant refused to do so * * *. It appears that during this period, off and on, that she did have some mental disturbance but the evidence does not show that she was so mentally disturbed that she was unable to make a choice of whether or not she wished to live with plaintiff. During this interval of separation, defendant indicated to plaintiff that she wanted a divorce.

'In April, 1957, without any notice * * * to plaintiff, defendant was committed to the Chicago State Hospital in Chicago, Illinois, and remained so committed to the time of the trial herein.

'Although the real estate in question was acquired during coverture and title to same was conveyed to parties as joint tenants, defendant did not contribute directly toward the purchase price and the title was so taken for convenience of the parties and at the direction of plaintiff. At the time the homestead was acquired, it was subject to a mortgage in excess of $7,000.00 which plaintiff has been paying on an amortized basis. Plaintiff still has a mortgage on said property in excess of $3,000.00.'

On appeal it is defendant's contention that (1) the evidence does not sustain a finding that defendant wilfully deserted plaintiff in the year 1951; (2) defendant is entitled to support from plaintiff; and (3) the award for attorney's fees is inadequate.

The evidence with respect to the issue of desertion disclosed the following: Plaintiff testified that in 1940 he and his wife moved from Chicago to Duluth where he has resided since that time; that in 1949 he bought a house in Duluth where he and his wife lived together until 1951; that in 1951, upon orders of her doctor, she was hospitalized at St. Mary's Hill in Milwaukee, Wisconsin, where she remained until December 1951; that when she left the hospital in Milwaukee she returned to Chicago to live with her mother and brother there; that she has not returned to Duluth where plaintiff is employed since that time; that plaintiff continued to care for the child of the parties since that date, at times employing a housekeeper to assist him therein; that on many occasions he has sought to induce defendant to return and live with him in Duluth; that in 1953, together with his attorney, he visited defendant in Chicago where he had conferences with her and with her brother and her doctor. With respect to such conferences, plaintiff testified:

'* * * I was pushed out of the picture completely; although I was married to my wife, I had no control over her at all. They seemed to want to take control * * *.'

He further testified that his wife was present for a short time when he was conferring with the others but left before the conference was over; that when defendant left Milwaukee to go to Chicago in 1951 it was understood by both plaintiff and defendant that she was to be gone for only a few days; that he objected to her remaining longer in Chicago and desired that she return to Milwaukee to continue her treatments in the hospital and that while she was in Chicago she engaged in some private employment; that when he wrote to her relatives requesting that she return to Duluth or Milwaukee, such requests were ignored; that on one occasion when he visited her in Chicago she became abusive and engaged in a tirade against him, calling him names and becoming hysterical in his presence.

On cross-examination plaintiff testified that defendant's doctor in Chicago had told him that it would be better for defendant's health if she did not return to Duluth; that she was improving and that her relatives would not agree to have her return to the hospital in Milwaukee.

Thomas K. Silverness, a son of the parties who was 22 years of age at the time of the trial, testified that he had visited his mother in Chicago at her brother's home; that after s...