Swanda v. Swanda

• Decision Date: 23 December 1924
• Docket Number: Case Number: 15319
• Citation: 232 P. 62,105 Okla. 160,1924 OK 1158
• Parties: SWANDA v. SWANDA.
• Court: Oklahoma Supreme Court

1924 OK 1158

232 P. 62

105 Okla. 160

SWANDA v. SWANDA.

Case Number: 15319

Supreme Court of Oklahoma

Decided: December 23, 1924

Syllabus

¶0 1. Divorce--Refusal of Divorce -- Decree Dividing Property--Review on Appeal.

Where the wife sues the husband for a divorce, alimony, and division of property, and the husband answers and files a crosspetition in which he asks that his wife's petition be denied, and that he be granted a divorce unless she agrees to a reconciliation, which she refuses to do, and the court denies a divorce to either party, the court may make such equitable orders, with reference to a division of the property as it thinks best. But where this court differs from the trial court as to the disposition of the property, this court will make such orders and modifications of the decree as it thinks equitable and just.

2. Husband and Wife -- Abandonment by Wife--Right of Wife to Support.

If the wife choose to live separate and apart from the husband, there being no reasonable cause for her abandonment of her husband, he cannot legally be required to contribute to her maintenance.

3. Divorce -- Refusal to Grant -- Decree Dividing Property.

Where, in an action by a wife against her husband to obtain a divorce and alimony, the court finds that the wife is not entitled to a divorce or alimony, and both are refused, the court is authorized under section 505, Compiled Laws 1921, to make such order as may be proper for the equitable division of the property then owned by them, taking into consideration the time and manner of its acquisition. Edward Dewes Oldfield and Selby & Callihan, for plaintiff in error.

J. C. Helms, for defendant in error.

MAXEY, C.

¶1 This action was commenced on the 29th day of May, 1923, by Mary Swanda, defendant in error, filing her petition in the district court of Oklahoma county against her husband, John Swanda, wherein she alleges that she and John Swanda were married on the 7th day of May, 1901, and have been husband and wife since that date, and that there were born to them eight children, seven of whom are now living, and gives their names and ages as follows: Theophile, age 21, George, age 19, Matilda, age 17, Adolph, age 15, Irene, age 9, Marguerite, age 7, and Helen, age 3. The plaintiff charges gross neglect of duty, in that the defendant failed and refused to provide the necessities of life for the plaintiff and her children, and charges extreme cruelty, alleging that the defendant is an able-bodied man, in good health, and a sheet metal worker by trade, and that he commands a large wage of from $ 8 to $ 10 per day, and that he earns about $ 500 per month. She alleges that she has been a faithful and loving wife and mother to their said children, and that she is without fault. She charges the defendant with drunkenness and abusive language to her and the children, and asks that he be restrained from visiting their home, and that she be granted temporary alimony, and on final hearing she be granted permanent alimony and for suit, money and attorneys' fees. The defendant filed his answer and crosspetition, wherein he denied all of the material allegations of plaintiff's petition, and set up in his cross-petition the marriage of plaintiff and defendant, and that the children named in plaintiff's petition were born to them. The defendant admits that he was a sheet metal worker, and alleges that for the last ten years, by reason of his age and being a chronic sufferer from rheumatism, he has been unable to follow his trade except shop work most of the time, and denies that he is making the sum of $ 500 a month, but is making about $ 125 a month when he is able to work, and that hc has expended all of the money he earned on his family and supported them to the best of his ability. He charges that his wife for the past six years has constantly complained of defendant not making more money and not furnishing more money for the support of his family, and has called him vile and vulgar names in the presence of the children, and cursed him and abused him, and has caused the children to dislike him and be inconsiderate of his feelings; but, notwithstanding her abusive treatment., that he is still willing to try to live with her and keep the family together, and asks that in case his wife refuses a reconciliation and will not return to him, that he then be granted a divorce, and that his wife's petition for divorce be denied. On the trial of the case there was a vast number of witnesses testified, and some of the testimony is unprintable. The evidence shows the plaintiff, Mary Swanda, to be a woman of violent temper, and that she never had a kind word for her husband, and that the children had become imbued with her dislike for the father, and when he was at home. it was one constant quarrel between them and she would get mad and use vile names and epithets. But in our judgment the cause of their home life was largely on account of the wife's constantly abusing him, because he did not furnish more money, and inasmuch as the husband had offered a reconciliation, and she, the wife, refused his offer in that respect, but stated that she would not live with him again if he were the last man in the world, and all she appeared to want was all of the property and all of the money that her husband could make, and live separate and apart from him, under the evidence, we think the court was...