Tennery v. Tennery
| Citation | 274 P. 638,35 Ariz. 69 |
| Decision Date | 18 February 1929 |
| Docket Number | Civil 2770 |
| Parties | TERRENCE T. TENNERY, Appellant, v. KATHERINE TENNERY, Appellee |
| Court | Supreme Court of Arizona |
APPEAL from a judgment of the Superior Court of the County of Navajo. J. E. Crosby, Judge. Judgment affirmed.
Mr. P A. Sawyer, for Appellant.
Mr John L. Sweeney, for Appellee.
This is a divorce proceeding. The husband, Terrence T. Tennery commenced the action, alleging cruelty. The wife's answer denied the allegations of cruelty. She also filed a cross-complaint for divorce from her husband charging him with cruelty.
Trial was had before the court without a jury, and resulted in a decree of divorce in favor of the wife and an allowance of $600 alimony, to be paid $100 a month beginning February 21 1928.
The husband, Terrence T., brings the case here, insisting that errors were committed (1) in the admission of evidence; (2) in the granting of the decree; and (3) in awarding alimony. The grounds of his assignment as to errors 2 and 3 are that the evidence fails to support the divorce decree, and the award of alimony was an abuse of the court's discretion, and contrary to the law and the evidence. We will consider these in the order stated.
We think it is enough to say that the evidence admitted over objection was competent and material. It bears upon the wife's ability to earn her own living. However, if it were not, the trial being to the court, under the rule the presumption is that it was not considered in arriving at a decision. Shannon Copper Co. v. Potter, 13 Ariz. 245, 108 P. 486; Nichols v. McClure, 23 Ariz. 27, 201 P. 95; Wamble v. Evants, 23 Ariz. 307, 203 P. 554; First Baptist Church v. Connor, 30 Ariz. 234, 245 P. 932.
The next assignment is directed at the sufficiency of the evidence to support the decree. On that issue the court made a finding to the effect that each and every allegation of cruelty of the wife's cross-complaint was true. This finding is not assigned as erroneous or unjustified by the evidence. The rule is that, where the court makes findings of fact, we will not look into the evidence for the purpose of determining its sufficiency upon an assignment that ignores the findings but challenges generally the sufficiency of the evidence. Where there are findings, we will accept them as being fully supported by the evidence, unless they are challenged by proper assignment. Joslin v. Stewart, 28 Ariz. 585, 238 P. 390; Mosher v. Sabra, 34 Ariz. 536, 273 P. 534.
What we have said of the foregoing assignment is applicable to the last or final assignment. The finding as to alimony was "that the cross-defendant is an able-bodied man and is able to pay cross-complainant the sum of $100 per month as alimony for a period of six months."
This finding as to the husband's ability to pay alimony is conclusive on that question, but we think, before he should be required to pay alimony, the evidence should show that it was "necessary for the support and maintenance of the wife." Such seems to be a requirement of the statute ...
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Norton v. Norton
...support and maintenance, defendant should not be required to pay it. Franklin v. Franklin, 75 Ariz. 151, 253 P.2d 337; Tennery v. Tennery, 35 Ariz. 69, 274 P. 638. However, in determining what is necessary there are certain matters the court must consider. The court, in making a determinati......
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Gage v. Gage
...we agree that an alimony award which is clearly excessive and oppressive may be upset as an abuse of discretion, Tennery v. Tennery, 35 Ariz. 69, 274 P. 638 (1929); Cummings v. Lockwood, 84 Ariz. 335, 327 P.2d 1012 (1958), we cannot agree with the appellant that the facts presented demonstr......
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Kennedy v. Kennedy
...ability to support herself, Franklin v. Franklin, 75 Ariz. 151, 253 P.2d 337 (1953), the ability of the husband to pay, Tennery v. Tennery, 35 Ariz. 69, 274 P. 638 (1929); and the other circumstances of the parties including their standard of In this case the only testimony as to the needs ......
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DeMarce v. DeMarce
...disturbed in the absence of a showing of an abuse of that discretion. Patterson v. Patterson, 63 Ariz. 499, 163 P.2d 850; Tennery v. Tennery, 35 Ariz. 69, 274 P. 638. We do not find such an abuse of the discretion in the instant We have likewise held that the question of alimony is one left......