Stefonick v. Stefonick
| Decision Date | 25 April 1946 |
| Docket Number | No. 8572.,8572. |
| Citation | 118 Mont. 486 |
| Parties | STEFONICK v. STEFONICK. |
| Court | Montana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Fifth District, Beaverhead County; C. E. Comer, Judge.
Action for divorce by Berta J. Stefonick against Peter Stefonick, wherein the defendant filed a cross-complaint. Judgment for plaintiff, and defendant appeals.
Affirmed in part and cause remanded with directions to modify the judgment. See also, 167 P.2d 867.Gilbert & Gilbert, of Dillon, and Gunn, Rasch & Gunn, of Helena, for appellant.
Maury & Shone, of Butte, and John Collins, of Dillon, for respondent.
Appeal by the defendant from a decree and judgment dissolving the marriage between the parties and awarding the plaintiff $27,416.60, which judgment was declared to be a lien on all real and personal property of the defendant. This amount is in addition to $2,808.40, theretofore paid by defendant to plaintiff under order of the trial court, as support, attorney's fees and other expenses incidental to the action.
The pleadings, evidence and findings are unusually voluminous, although, as will hereafter appear, the issues which we believe to be material are simple. The complaint alleges the marriage between the parties on September 3, 1940, and that no issue resulted. It then alleges the infliction of extreme cruelty by the defendant upon plaintiff at stated times during the years 1940, 1941, 1942 and 1943, in that defendant during such period repeatedly cursed plaintiff and applied vile and abusive epithets to her; threw buckets at her; pulled her from a horse which she was riding; flourished a shotgun before plaintiff and threatened to kill her; knocked her down and kicked her, resulting in serious injury; stated to plaintiff that he wished he had never seen her and wished he could get rid of her and that at some time he would do so; on numerous occasions falsely accused plaintiff of unchastity; habitually cursed, scolded, berated and nagged plaintiff without cause or provocation, threatened her with bodily injury, and inflicted bodily injury upon her, by reason of which during all of said time, she has remained in fear of the defendant and has suffered, and still suffers, from bodily pain and nervous disorders; compelled plaintiff to perform a man's work upon his ranch, in addition to usual housework, by reason of which her health and strength have been undermined. The complaint follows the wording of the statute in alleging that by reason of the course of conduct described the peace of mind and happiness of the plaintiff have been destroyed, and the purpose and legitimate objects of the marriage have been defeated, and the continuance of the married relation between the parties has been rendered perpetually unreasonable and intolerable to plaintiff. It is further alleged that defendant is possessed of property of the clear value of $75,000, the bulk of which was accumulated during the married life of the parties, and to the accumulation of which the efforts of plaintiff have largely contributed. The prayer of the complaint is for a decree of divorce, with an equitable property settlement, and for costs, attorney's fees and maintenance of plaintiff pending determination of the action.
After hearing on an order to show cause, the trial court ordered payment by defendant of attorney's fees, costs, and the sum of $175 monthly for the support of plaintiff until determination of the action.
Defendant by answer denies all of the acts of cruelty alleged in the complaint, and admits owning property of a value not in excess of $50,000. For a further answer and defense defendant alleges that prior to September 3, 1940, the parties were contemplating marriage and were desirous of settling forever the property rights which would result from the contemplated marriage; that for the purpose of avoiding the difficulties or differenes which might arise concerning such property rights of either of them, the parties, on September 3, 1940, entered into an agreement in writing, which was recorded in the office of the Clerk and Recorder of Beaverhead County on January 8, 1941, a copy thereof being annexed to the answer as Exhibit A; that said contract is in force and effect and that defendant has fully performed the same. That in said contract the plaintiff waived and relinquished any and all rights she might otherwise acquire in and to the property of the defendant by reason of the marriage of the parties, and agreed with defendant that if either party ‘shall institute an action for divorce, the party bringing such action covenants and agrees to pay all expenses incurred in such action, and covenants and agrees that the other party shall never be called upon to pay alimony, separate maintenance, costs of suit or any other expense incurred by the party bringing the action.’ (The portion quoted is from the contract.) That by reason of such agreement the plaintiff is precluded from now asserting any right or interest in or to defendant's property, or from demanding or receiving any part of defendant's estate or any alimony, costs or attorney's fees from the defendant.
For a cross-complaint defendant alleges extreme cruelty by plaintiff toward defendant, as evidenced by her actions and conduct therein particularized. For reasons to appear we deed it unnecesssary to elaborate upon these allegations.
By reply to defendant's cross-complaint plaintiff denies all general and specific allegations of extreme cruelty therein set forth. In her reply, as a defense to defendant's further answer, plaintiff alleges the prior marriage of the parties in March 1938; that thereafter they lived together as man and wife, and through the efforts of both commenced to accumulate real and personal property; that prior to December 1939 the defendant conceived a scheme to acquire all of the property in his own name, and to oust the plaintiff from any and all rights which she had, or might have, in the property accumulated by their joint efforts, in pursuance of which a separation agreement was executed by the parties on January 3, 1940; that on the same day defendant fraudulently, and without the knowledge of plaintiff, obtained a divorce from her; that in the divorce action she was represented by W. G. Gilbert, Esq., acting as her attorney under written authority signed by her upon misrepresentation by defendant's attorneys that it was a part of the separation agreement; that the parties did not thereafter live separate and apart, but continued to live together as man and wife, and that plaintiff remained in ignorance of the divorce decree until September 2, 1940, when she was informed thereof by a neighbor. It is further alleged that when questioned on that date the defendant admitted to plaintiff that he had obtained a divorce, and suggested that the parties remarry, and they proceeded to Salmon, Idaho, where they were married the following day, which was the date of the property settlement contract above referred to, dated September 3, 1940; that plaintiff never knowingly signed such contract, and that if her signature appears thereon, which she denies, it was obtained by some fraudulent trick, scheme or device practiced upon her by the defendant or someone acting for him; that such contract was recorded, and that she learned of its existence from a source other than the defendant; that there was no consideration for such contract, and that the sum of $1,000 mentioned therein as the consideration for her execution thereof was never paid to or received by her; that plaintiff had no knowledge of the existence of such purported contract until the summer of 1943, at which time defendant admitted its existence, and promised to cancel and remove it of record.
By reply to plaintiff's defense to the defendant's further answer, defendant denies the material allegations thereof.
At the conclusion of the trial the trial court refused findings and conclusions offered by both parties, and on August 26, 1944, filed its findings of fact and conclusions of law. Thereafter the court made an order enjoining the defendant from disposing of or encumbering any of his property, except for the payment of the judgment herein.
The findings and conclusions, like the pleadings and evidence, are extremely voluminous, the record consisting of some nine hundred pages. Since we think that extraneous issues were injected into the case, we shall discuss only the findings, conclusions and evidence which affect the two material questions raised, viz., (1) Is the evidence sufficiently substantial to justify the decree of divorce in plaintiff's favor, and (2) was the trial court justified in awarding judgment for the plaintiff in an amount equivalent to one-half of the increase in the value of defendant's property from the date of the first marriage until their separation, or at all.
Condensed to their essence, the findings are that the parties have been husband and wife since the 20th day of March 1938; that between that date and the month of June 1943 they lived and cohabited together as man and wife, and by their equal joint efforts during such period a large amount of property has been earned and accumulated in the name of the defendant, to the earning and accumulation of which the work and labor of the plaintiff has contributed equally with that of the defendant.
As to the grounds for divorce, as alleged in the complaint, the court found that throughout the married life of the parties the defendant repeatedly and often threatened, beat, kicked and otherwise maltreated the plaintiff, and continually and habitually cursed, scolded and applied vile epithets to her, and falsely accused her of unchastity; that he required her for unreasonably long hours to perform, and she did perform, labor in his household and as a common laborer upon his ranch, and to lift burdens beyond her strength.
Findings V, VII and VIII have to do with...
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