Tuttle v. Tuttle

• Decision Date: 03 December 1910
• Citation: 128 N.W. 695,26 S.D. 545
• Parties: ANNA F. TUTTLE, Plaintiff and appellant, v. EDMUND L. TUTTLE, Defendant and respondent.
• Court: South Dakota Supreme Court

26 S.D. 545, 128 N.W. 695 (1910)

ANNA F. TUTTLE, Plaintiff and appellant v EDMUND L. TUTTLE,

Defendant and respondent

South Dakota Supreme Court

Appeal from Circuit Court, Kingsbury County, SD

Hon. Alva E. Taylor, Judge

Modified

A. W. Wilmarth

Attorneys for appellant.

Gardner, Fairbank & Churchill, W. A. Lynch

Attorneys for respondent.

Opinion filed December 3, 1910

(See 26 S.D. 95, 127 N.W. 637;

26 S.D. 306, 128 N.W. 695)

McCOY, J.

This action was instituted in the circuit court by the plaintiff and appellant, Anna F. Tuttle, against Edmund L. Tuttle, defendant and respondent, for the purpose of obtaining an absolute divorce from respondent and permanent alimony. The trial of the issues resulted in findings and judgment in favor of appellant and an awarding to her by the trial court of $2,000 permanent alimony. Plaintiff has appealed from that part of the judgment and decree awarding her $2,000 permanent alimony.

There is but one assignment of error urged and but one question for consideration before this court and that is, whether the trial court abused its discretion in awarding plaintiff only $2,000 permanent alimony. This assignment of error is based solely upon the findings of fact made by the trial court. Plaintiff based her cause of action on the ground of cruel and inhuman treatment. Defendant, in the counterclaim contained in his answer, also made cross-complaint charging plaintiff with infidelity and fraud in contracting the said marriage.

The court made the following findings of fact: That plaintiff and defendant were married at Crown Point, Ind., January 12, 1907, and ever since have been and now are husband and wife; that plaintiff is 36 years of age and defendant 46 years of age, both in good health, and neither plaintiff nor defendant have any children; that both the plaintiff and defendant are now and have been residents of Kingsbury county for more than two years last past; that plaintiff and defendant were raised from childhood in the city of Waukegan, Ill., and attended the same school in said city and have been personally acquainted since their childhood days; that since the marriage of the plaintiff and defendant, the defendant for more than two years has treated the plaintiff with extreme cruelty and has inflicted grievous mental suffering upon her, and called her vile and opprobrious names and has charged her with infidelity to her marriage vow and with unchastity prior to her marriage with him, and has refused to call with her socially upon any of their neighbors and has refused to go with her or permit her to accompany him to any place of amusement or to any social gatherings; that the value of the defendant's property at this time is the sum of $16,500, nearly all of which was accumulated by him prior to the marriage of the plaintiff and defendant, as herein set out, nearly all of which is personally property; that the plaintiff had no property except her wearing apparel, of about $75 in value at the time of the marriage between plaintiff and defendant, and at the present time has no property except her wearing apparel, not to exceed the value of $50.

The court made the following conclusions of law: That the plaintiff is entitled to a decree of this court severing the bonds of matrimony heretofore existing between the plaintiff and defendant; that the defendant pay to the plaintiff from the proceeds of his property alimony in the sum of $2,000, payable as follows, to-wit, $400 at this time; $400 on the 1st of January, 1911; $400 on the 1st of January, 1912; $400 on the 1st of January, 1913; and $400 on the 1st of January, 1914; provided, that if the plaintiff remarry, defendant shall not be required to pay any of the payments herein stated falling due after the said marriage; that the defendant should be required to give a good and sufficient bond in the sum of $3,000, to be approved by the court to insure the compliance with said order, and on failure of the defendant to give a bond which the court will approve the whole sum of $2,000 shall be due and payable at once.

The contention of appellant is that, under the said findings of fact, she should have been awarded permanent alimony far in excess of $2,000. In this contention we are of the opinion that appellant is in the right. While there is no arbitrary, fixed rule defining and limiting just what proportion of the husband's property the wife should receive as permanent alimony where she has been granted a divorce for his fault, and while the matter of the amount of such alimony rests in the sound discretion of the trial court, still, if the award is erroneous on its face or unjust and inequitable to either party, it is the subject of review and correction on appeal. Williams v. Williams, 6 S.D. 284, 61 N.W. 38; 14 Cyc. 769. When in equity and justice the amount awarded is too great, the appellate court will reduce such amount. Williams v. Williams, supra. Fahey v. Fahey, 43 Colo. 354, 96 Pac. 251, 18 L.R.A. (N.S.) 1154, 127 Am.St.Rep. 118. When the amount awarded by the trial court is inadequate, under the circumstances shown, the appellate court will increase the amount thereof. Muir v. Muir, 133 Ky. 125, 92 S.W. 314, 4 L.R.A. (N.S.) 909; Hoff v. Hoff, 49 Mich. 281, 12 N.W. 160; Schabel v. Schabel, 115 Mich. 487, 73 N.W. 553; Walston v. Walston, 126 N.W. 145; 7 Decennial Digest, Title, Divorce, § 240.

In arriving at what is a just and equitable amount of permanent alimony that should. be allowed the wife, on separation by divorce for the fault of the husband, various matters should be taken into consideration. (The value of his property both real and personal, and his...