Stephens v. Stephens

• Decision Date: 14 July 1933
• Docket Number: 5921
• Citation: Stephens v. Stephens, 53 Idaho 427, 24 P.2d 52 (Idaho 1933)
• Parties: MARK STEPHENS, Appellant, v. ALMA STEPHENS, Respondent
• Court: Idaho Supreme Court

24 P.2d 52

53 Idaho 427

MARK STEPHENS, Appellant, v. ALMA STEPHENS, Respondent

No. 5921

Supreme Court of Idaho

July 14, 1933

DIVORCE-CRUELTY-EVIDENCE - CORROBORATION - TESTIMONY OF CHILDREN-HUSBAND AND WIFE-DOMICILE-SEPARATE MAINTENANCE-CUSTODY OF CHILDREN-JURISDICTION.

1. Where evidence is conflicting, and there is substantial evidence to support findings, appellate court will not disturb findings.

2. No definite rule as to degree of corroboration necessary to warrant granting of divorce can be promulgated, and each case depends on particular facts and circumstances (I. C. A., sec. 31-703).

3. Admissions or confessions by defendant in divorce action though admissible, cannot be considered as corroborating plaintiff's testimony (I. C. A., sec. 31-703).

4. Where no collusion between parties to divorce action is evident, slight evidence in corroboration of plaintiff, aside from defendant's admissions, is sufficient (I. C. A sec. 31-703).

5. In husband's action for divorce on ground of extreme cruelty, evidence held insufficient to corroborate testimony of plaintiff (I. C. A., sec. 31-703).

6. Courts are justified in being very cautious in scrutinizing testimony of children of tender years.

7. Court of equity has inherent jurisdiction to award separate maintenance for support of wife and minor children independent of divorce action, and independent of statutory provisions.

8. Where husband is guilty of acts of cruelty and misconduct wife is under no obligation to live, or move, with him when he changes residence, although husband still remains obligated to support wife and children.

9. Where court finds it is impossible for husband and wife to reside together, decree for separate maintenance may be granted.

10. No corroboration of wife's testimony is required to support decree requiring husband to provide separate maintenance for wife (I. C. A., sec. 31-703).

11. Evidence establishing acts of cruelty and misconduct by husband toward wife held to warrant allowance of separate maintenance to wife and child.

12. Where husband is guilty of acts of cruelty and misconduct toward wife, she is entitled to establish her own domicile and that of minor children living with her.

13. Where husband commenced divorce action and nonresident wife appeared voluntarily and submitted to jurisdiction, praying for custody of children, court held to have jurisdiction to award nonresident minor daughter to wife.

14. Where nonresident wife voluntarily appeared in husband's divorce action, contested action, and prayed for separate maintenance, court held to have jurisdiction to enter decree awarding right of possession of property outside state to wife, requiring husband to pay taxes and assessments, and to liquidate mortgage against property.

APPEAL from the District Court of the Tenth Judicial District, for Nez Perce County. Hon. Miles S. Johnson, Judge.

Action for divorce. Appeal from judgment and decree denying divorce and awarding separate maintenance and custody of a minor child to the defendant. Affirmed.

Affirmed.

Leo McCarty and Hartley P. Kester, for Appellant.

There is sufficient corroboration of the testimony of the plaintiff to entitle him to a decree of divorce. (Bell v. Bell, 15 Idaho 7, 96 P. 196; De Cloedt v. De Cloedt, 24 Idaho 277, 133 P. 664; Donaldson v. Donaldson, 31 Idaho 180, 170 P. 94.)

The evidence is wholly insufficient to justify a decree of separate maintenance. (30 C. J., p. 1074, sec. 865, and p. 1076, sec. 871; Hoffhines v. Hoffhines, 149 Md. 350, 126 A. 112, 38 A. L. R. 332; Jenny v. Jenny, 178 Cal. 604, 174 P. 652.)

The court had no jurisdiction over the minor child, Esther May Stephens, as the said child was not within the jurisdiction of the court; and the court had no jurisdiction to award the use of the property to the respondent, for the reason that the property is located in the state of Washington and not within the jurisdiction of this court. (9 R. C. L. 471, 522; Wear v. Wear, 130 Kan. 205, 285 P. 606, 72 A. L. R. 425, and notes; Duryea v. Duryea, 46 Idaho 512, 269 P. 987.)

Tannahill & Durham and Lincoln Shropshire, for Respondent.

The law of the land having made it the legal duty of the husband to support his wife and children, courts of equity within this state have the power, in a suit by the wife for alimony and support, to enforce the discharge of such duty, without reference to whether the action is for a divorce or not and such power exists independent of statutory authority. (Simonton v. Simonton, 33 Idaho 255, 193 P. 386; Vollmer v. Vollmer, 47 Idaho 135, 273 P. 1; 30 C. J., p. 1072; 21 Cyc., p. 1602; Mattson v. Mattson, 181 Cal. 44, 183 P. 443; Hiner v. Hiner, 153 Cal. 254, 94 P. 1044; Galland v. Galland, 38 Cal. 265.)

Where the court had jurisdiction over the father and the mother, it has power to render a personal decree granting the custody and care of the minor child to whomsoever was a fit and proper person, and it was immaterial whether the child may or may not have been within the jurisdiction of the court. (Anderson v. Anderson, 74 W.Va. 124, 81 S.E. 706; State v. Hall, (Mo.) 257 S.W. 1047; Adams v. Adams, 1 Duvall (Ky.), 167, 168; Workman v. Workman, 191 Ky. 124, 229 S.W. 379.)

The parties having submitted themselves to the jurisdiction of the court, it had authority to award the use of the property in Spokane, Washington, to either party. (Vineyard Land & Stock Co. v. Twin Falls S. R. L. & W. Co., 245 F. 9; Coulthard v. Davis, 181 Iowa 578, 131 N.W. 1088; Union Trust Co. v. Olmstead, 102 N.Y. 729, 7 N.E. 822.)

WERNETTE, J. Budge, C. J., and Givens, Morgan and Holden, JJ., concur.

OPINION

WERNETTE, J.

Appellant and respondent were married in 1915, and as the fruits of the marriage they have two children, a boy, age ten years, living with his father, the appellant, at Lewiston, Idaho, and a girl, age six years, residing with her mother at Spokane, Washington. The parties acquired a small amount of real property, consisting of a house and lot, in Spokane.

Appellant, in paragraph 5 of his complaint for divorce, charges respondent with various acts of extreme cruelty, details being unnecessary, except as may be hereafter especially mentioned. He prays for an absolute divorce and custody of the two minor children.

In the answer, and amended cross-complaint, respondent denied the allegations charging extreme cruelty, and in paragraph 4 of her cross-complaint sets forth many and various acts of extreme cruelty and misconduct on the part of the appellant, which need not here be specially enumerated, but which may be referred to later. Respondent also alleges, in said paragraph 4, that by reason of said acts of cruelty on the part of appellant it was impossible for her to live and reside with him; that they have been living separate and apart on account thereof.

In paragraph 6 of the cross-complaint respondent alleges, among other things, that appellant is an able-bodied man, a railroad engineer by occupation, capable of earning $ 250 a month; that by reason of his seniority rights he was able to have almost continuous employment; that by moving to the state of Idaho he thereby waived such seniority rights for the purpose of establishing such residence in order to obtain a divorce. Respondent prayed that the appellant be denied a divorce; that she be awarded the care and custody of the minor children, and be granted $ 125 a month permanent alimony or separate maintenance for the care and support of herself and the minor children. The material allegations of the cross-complaint, with regard to the acts of extreme cruelty and misconduct, and the allegations of paragraph 6, were denied by the answer to the cross-complaint.

On the issues thus framed the action was tried before the court, the court making findings of fact, conclusions of law, judgment and decree denying the divorce to said appellant, granting custody of the minor son to appellant and the custody of the minor daughter to respondent, and decreeing separate maintenance to respondent in the sum of $ 50 a month for her support and maintenance and that of the minor daughter. The court provided further that respondent is entitled to the use and occupancy of the house and lot, owned jointly by the parties, situated in Spokane, Washington, without molestation by appellant, and that the taxes and assessments and $ 600 mortgage on the property be paid by appellant. From this judgment and decree appellant has perfected this appeal.

While appellant makes numerous assignments of error, they may all be grouped so as to raise three distinct questions or propositions to be decided. First, was there sufficient corroboration of the testimony of the appellant to entitle him to a decree of divorce? Second, was there sufficient evidence to justify the court in granting respondent a decree for separate maintenance? Third, did the court have jurisdiction to award the nonresident minor child to the respondent, and to award the use and occupancy of the real property situated in the state of Washington to the respondent, and to compel the appellant to pay all taxes and assessments against the property and to pay off the mortgage on the said real property, which was located outside of the jurisdiction of the court?

The record, as a whole, discloses a very regrettable state of affairs, as between these unfortunate people. It is unnecessary to go into detail regarding the evidence concerning the charges and counter-charges of cruelty and misconduct, made by one as against the other. Suffice it to say that the appellant testified in support of the various charges of extreme cruelty he accused respondent with in his complaint, together with others not alleged. These were all denied by the respondent and she in...