Smiley v. Smiley

• Decision Date: 31 July 1928
• Docket Number: 5015
• Citation: 46 Idaho 588,269 P. 589
• Parties: MARY E. SMILEY, Appellant, v. JOHN W. SMILEY, Respondent
• Court: Idaho Supreme Court

269 P. 589

46 Idaho 588

MARY E. SMILEY, Appellant, v. JOHN W. SMILEY, Respondent

No. 5015

Supreme Court of Idaho

July 31, 1928

DIVORCE-EXTREME CRUELTY-DISPOSITION OF COMMUNITY PROPERTY-ALIMONY - SUFFICIENCY - ATTORNEY'S FEES - PLEADING - ADMISSIONS-PARTIES BOUND THEREBY.

1. Matter of disposition of community property, where divorce is granted on the ground of extreme cruelty, is primarily committed to discretion of trial court, notwithstanding evident intent of C. S., sec. 4650, that injured party should be awarded more than one-half thereof.

2. Refusal to consider wife's children of former marriage as one of circumstances to be considered in awarding suitable allowance for permanent alimony held not error, in that C S., sec. 4644, relative to allowance where divorce is granted for offense of husband, makes no provision for maintenance and support of wife's children by former marriage.

3. Amount of permanent alimony to be awarded is largely in discretion of trial court, and award will not be interfered with on appeal unless there is a manifest abuse of discretion.

4. Award of $500 for permanent alimony to wife held sufficient in view of fact that divorce was secured within less than a year after marriage on very slight evidence of extreme cruelty, and that income of husband during year of marriage received largely from properties constituting separate estate, did not greatly exceed amount of expense of operation of business and cost of maintaining family.

5. In taking evidence for the purpose of fixing amount of allowance for attorney's fees in divorce action, the court is not trying an issue in the case, but is seeking for information as basis for order and is not bound by rules of evidence applicable to contesting litigants.

6. Allowance of $250 as attorney's fees in divorce action held reasonable notwithstanding uncontradicted evidence that $500 was reasonable sum to be allowed.

7. Admission made in a pleading is binding on the party making it.

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. W. F. McNaughton, Judge.

Action for divorce. Judgment for plaintiff. Affirmed.

Decree affirmed.

Miles F. Egbers and James F. Ailshie, for Appellant.

It is the duty of the court to award to the innocent party more than one-half of the community property when the divorce is granted for extreme cruelty. (C. S., sec. 4650, subds. 1 and 2; Eslinger v. Eslinger, 47 Cal. 64; Thomsen v Thomsen, 31 Cal.App. 185, 159 P. 1055; Carter v. Carter, 39 Idaho 798, 230 P. 768.)

The court must consider expert testimony as a basis for findings and judgment awarding attorney's fees and expenses to the wife in an action for divorce. (Callahan v. Callahan, 33 Idaho 241, 192 P. 660.)

In exercising the judicial discretion which regulates the amount of permanent alimony, among other things the consideration of what persons, if any, each is under a legal duty to support must be considered as a circumstance of the parties respectively. (C. S., sec. 4644; 2 Bishop on Marriage, Divorce and Separation, 401.)

A wife, in whose favor a decree has been entered, must be provided for by the judgment of the court, in such sums as to enable her to live in as comfortable and favorable situation as she occupied during marriage. (Day v. Day, 15 Idaho 115, 96 P. 431; 19 C. J. 249; Canine v. Canine, 13 Ky. Law Rep. 124, 16 S.W. 368.)

By the marriage respondent assumed the responsibility of providing for appellant's minor children of a former marriage. (Harris v. Lyon, 16 Ariz. 1, Ann. Cas. 1916A, 1175, 140 P. 825; Kempson v. Goss, 69 Ark. 451, 64 S.W. 224; 29 Cyc. 1667; 20 R. C. L. 594; Magnuson v. O'Day, 75 Wash. 574, Ann. Cas. 1915B, 1230, 135 P. 640.)

Ezra R. Whitla, for Respondent.

"It is not necessary to make proof of the value of the services of counsel in a divorce case where an allowance therefor is made at the conclusion of the trial, for the court may determine the matter from its own experience and the circumstances as disclosed by the record." (Cochran v. Cochran, 93 Minn. 284, 101 N.W. 179.) In that case the court said further: "In this case the court was fully advised by the record as to the extent of the services of plaintiff's counsel, and all the circumstances of the case, including the value of defendant's property."

That is exactly so here. The judge who made the allowance heard the entire case, was familiar with every phase of it and surely was in position to say what was the proper attorney's fee.

Where a case is appealed to the supreme court the court is not bound by the testimony of witnesses but may exercise its own discretion as to the allowance on appeal. (Bolton v. Bolton, 98 Neb. 625, 154 N.W. 213.) In that case the court said as follows: "In a matter concerning the compensation of attorneys engaged in the trial of divorce cases appealed to this court the supreme court is at liberty to exercise its own judgment and discretion as well as to avail itself of the estimates placed by experts upon the value of the services."

Disposition of property entirely in the discretion of court. The rule was plainly enunciated by the supreme court of California in Rose v. Rose, 112 Cal. 341, 44 P. 658, where they say: "A division of the property between parties to a divorce case rests primarily with the trial court, and will not be disturbed except for a palpable abuse of discretion. . . .

"The complaint made as to the inequitable division of the property between the parties would appear, from all the evidence presented, to possess, possibly, some just foundation in fact, if the discretion rested primarily with us, since to our minds, the defendant would seem to have been treated, perhaps, a little harshly by the court below. But it is a question committed to the justice and discretion of that court, whose opportunity to judge of the equities, by reason of seeing and hearing the witnesses, is superior to our own and whose determination of the question we are not at liberty to disturb, except for a palpable abuse, which certainly the record before us does not enable us to declare."

This court in Donaldson v. Donaldson, 31 Idaho 180, 170 P. 94, sustained the same rule, stating as follows: "The matter of the disposition of community property, where a divorce is granted upon the grounds of extreme cruelty, is a matter in the first instance committed to the discretion of the trial court. . . ."

Respondent under no duty to take care of appellant's children. Counsel in his fifth assignment claims that there is somewhere, somehow, some way, an obligation upon the respondent to take care of his stepchildren. Of course that is not the law, and never has been. The cases he cites are directly against him. For instance, Harris v. Lyons, 16 Ariz. 1, Ann. Cas. 1916A, 1175, 140 P. 825, was simply a guardianship proceeding where the stepfather had voluntarily taken the child to raise and later attempted to recover the expenditures back. In that case, quoting from In re Besondy, 32 Minn. 385, 50 Am. Rep. 579, 20 N.W. 366, the court said: " . . . . And, a stepfather is, of course, not bound to maintain the children of his wife by a former husband."

In Kempson v. Goss, 69 Ark. 451, 64 S.W. 224, cited by appellant, the court said: "In the absence of a statute requiring it, one is not bound to maintain the minor children of his wife by a former husband."

Magnuson v. O'Dea, 75 Wash. 574, Ann. Cas. 1915B, 1230, 135 P. 640, 48 L. R. A., N. S., 327, does not in the least sustain appellant.

Wood v. Wood, 61 A.D. 96, 70 N.Y.S. 72, is, however, directly in point upon this case. The court said: "An award of alimony to plaintiff in divorce, including an allowance for the support and maintenance of the son of her husband by a former marriage, is void."

WM. E. LEE, C. J. Givens and Taylor, JJ., concur.

OPINION

WM. E. LEE, C. J.

The parties intermarried on November 7, 1925. On October 28, 1926, appellant brought this action for divorce on the ground of extreme cruelty, asking for partition of the community property, permanent alimony and attorney's fees. Decree was entered granting the prayer for divorce, awarding appellant $ 500 permanent alimony, $ 250 attorney's fees and one-half the community property. She appeals from that portion of the decree affecting the distribution of the property, the award of permanent alimony and the allowance for attorney's fees.

It is urged that the trial court erred in awarding appellant only one-half the community property; that, when a divorce is granted on the ground of extreme cruelty, the evident intent of C. S., sec. 4650, is that the injured party should be awarded more than one-half the community estate. While...