Vollmer v. Vollmer

• Decision Date: 20 December 1928
• Docket Number: 4898
• Citation: 273 P. 1,47 Idaho 135
• Parties: N. P. VOLLMER, Appellant, v. ESTHER A. VOLLMER, Respondent
• Court: Idaho Supreme Court

273 P. 1

47 Idaho 135

N. P. VOLLMER, Appellant, v. ESTHER A. VOLLMER, Respondent

No. 4898

Supreme Court of Idaho

December 20, 1928

DIVORCE - DESERTION - DEFENSE - JUSTIFICATION - EVIDENCE - HUSBAND AND WIFE - ALLOWANCE FOR MAINTENANCE - AMOUNT - ABILITY TO PAY-EVIDENCE-REVISION OF ORDER-TERMINATION-ATTORNEY FEES-COSTS-JURISDICTION.

1. In action for divorce on ground of desertion, evidence held sufficient to support finding negativing desertion and finding excuse and justification for defendant's absence under belief that it was ill-advised and unsafe for her and baby girl of parties to live and cohabit with defendant notwithstanding plaintiff's letter demanding that defendant return and live with him.

2. In an action for divorce brought on ground of desertion and not for extreme cruelty, finding that plaintiff suffered no mental pain or anguish on account of desertion or other conduct of defendant was immaterial.

3. In action for divorce for desertion, slight, if any, inaccuracy in finding that plaintiff had not provided defendant with home, held immaterial, in view of court's justification of defendant's conduct in remaining away from plaintiff.

4. In action for divorce on ground of desertion, fact that plaintiff's sources of income were gifts and donations does not dispute finding that he had sources of income and that expenses of carrying on and maintaining action had been borne by him.

5. In action for divorce, finding that parties had common property consisting of certain land, though not supported by evidence was entirely immaterial.

6. In action for divorce for desertion, evidence showing that plaintiff was an able-bodied man, 43 years old, and a Harvard graduate, held sufficient to show that he was competent to earn funds, which, in addition to income as executor and trustee under mother's will, would enable him to contribute $150 per month to his wife's support, such amount being necessary in view of her previous method of living and of plaintiff's voluntary allowance of $300 per month.

7. In divorce action an order for maintenance is subject to revision under changed circumstances.

8. In divorce action, allowance for maintenance is dependent on continuation of marriage relation, and provisions purporting to fix allowance beyond future possible termination of marriage are nullity.

9. Judgments are required to be definite and certain.

10. In action for divorce in which there was judgment for defendant wife, court was not justified in allowing to wife sums for investment at her whim and fancy in a house or for purposes that she might deem for their best interests and welfare since husband has management and control of community property and of his separate property.

11. Trial court has jurisdiction to allow defendant wife's attorney's fees at close of trial of divorce action notwithstanding that wife was unsuccessful in prayer to amend her complaint that she secured only separate maintenance and that plaintiff did not succeed.

12. Five thousand dollars allowed for defendant wife's attorney's fees in divorce action held excessive, and should be reduced to $2,000.

13. In divorce action on ground of desertion, court did not err in allowing defendant wife $305 costs, in view of ruling that court has jurisdiction to make an award of costs in such an action upon final determination.

14. Courts of equity have inherent jurisdiction to award separate maintenance for support of wife and minor child, independent of any action for divorce, so that an award of separate maintenance was not erroneous in divorce action merely because conditions did not authorize divorce.

APPEAL from the District Court of the Second Judicial District, for Latah County. Hon. Edgar C. Steele, Judge.

Action for divorce. Judgment for defendant of separate maintenance. Modified and affirmed.

Judgment affirmed. Motion of counsel for additional attorney's fees denied. No costs are awarded. Petition for rehearing denied.

J. L. Phillips and O. C. Moore, for Appellant and Crossrespondent.

Wilful desertion and abandonment of plaintiff by defendant without any just cause is established by the entire evidence. Hence, plaintiff is entitled to a decree of divorce. (C. S., secs. 4627, 4633.)

The evidence shows that defendant's refusal to live with plaintiff began in the spring of 1920, many months before any question had been raised as to his mental condition, or the advisability of discontinuing marital relations, the principal, if not sole reason at that time being her disinclination to live in an apartment or in the home of plaintiff's mother, which in no way extenuates her conduct, selection of a place of residence being a right of the husband. (Roby v. Roby, 10 Idaho 139, 77 P. 213; 19 C. J. 59, 60; 9 R. C. L. 365; 15 Am. & Eng. Ency. of Law, 812; Klein v. Klein, 29 Ky. Law, 1042, 96 S.W. 848.)

Neither the unwisdom of bearing children by plaintiff, nor such form of mental impairment as that from which plaintiff is charged to have suffered, constitutes justification for desertion and abandonment. (Tiffany v. Tiffany, 84 Iowa 122, 50 N.W. 554.)

Separate maintenance cannot be awarded to a wife in the absence of conditions authorizing a divorce, hence the trial court having held defendant not entitled to decree under her cross-complaint, was in error in awarding separate maintenance. (Shors v. Shors, 133 Iowa 22, 110 N.W. 16; Leonard v. Leonard, 174 Iowa 734, 156 N.W. 803.)

The allowance by the decree of $ 10,000 to defendant, to enable her to purchase a home for herself and child, is grossly excessive, in view of plaintiff's health as found by the court, and his lack of financial resources. (Humbird v. Humbird, 42 Idaho 29, 243 P. 827.)

The court was without jurisdiction to make the award of $ 5,000, or any amount whatever, in favor of defendant's attorneys, on account of past services. The court was likewise without jurisdiction to award the sum of $ 305, or any other amount, on account of previously incurred obligations by defendant in connection with this cause. (Donaldson v. Donaldson, 31 Idaho 180, 181, 170 P. 94; Taylor v. Taylor, 33 Idaho 445, 196 P. 211; 19 C. J. 230.)

The award of $ 5,000 as an attorney fee is, in any event, unreasonable and excessive, in view of plaintiff's lack of resources, his physical and mental condition, as found by the court, and his small earning capacity. (Humbird v. Humbird, supra.)

The allowance of $ 300 per month to defendant, as separate maintenance for herself and child, is unreasonably large, in view of the poverty of plaintiff, his mental condition as found by the court, and his lack of earning capacity. (Humbird v. Humbird, supra.)

The court was without jurisdiction to award the sum of $ 250 per month, or any other amount, for separate maintenance of defendant and her child, or either of them, with a view to a possible future dissolution of the marriage relation, since the award of separate maintenance is based upon the continued existence of that relation, while the question of alimony can only be determined in connection with a judicial dissolution thereof. (30 C. J. 1071, sec. 859.)

James F. Ailshie and James F. Ailshie, Jr., for Respondent.

Wilful desertion is the voluntary separation of one of the married parties from the other with intent to desert. (C. S., sec. 4630; Bell v. Bell, 15 Idaho 7, 20; 96 P. 196; Stoneburner v. Stoneburner, 11 Idaho 603, 610, 83 P. 938; note, 138 Am. St. 150; 9 R. C. L., sec. 140, p. 355; Banta v. Banta, 112 Kan. 713, 212 P. 657; Powell v. Powell, 29 Vt. 148-150; note, pp. 618-623.)

A wife is not chargeable with desertion because she refuses to live at the home of her husband's relatives and take a subordinate position therein. (Spafford v. Spafford, 199 Ala. 300, 74 So. 354, L. R. A. 1917D, 773; Hoffhines v. Hoffhines, 146 Md. 350, 38 A. L. R. 332, 126 A. 112; 19 C. J. 60; Powell v. Powell, supra.)

Respondent is entitled to an allowance sufficient to maintain her in the same social standing and with the same comforts and luxuries of life as she would probably have enjoyed but for the enforced separation. (1 R. C. L. 932; 2 Bishop, Marriage & Divorce, sec. 468; Muir v. Muir, 133 Ky. 125, 92 S.W. 314, 4 L. R. A., N. S., 909; Day v. Day, 15 Idaho 107, 96 P. 431; Yost v. Yost, 141 Ind. 584, 41 N.E. 11; De Ruiter v. De Ruiter, 28 Ind.App. 9, 91 Am. St. 107, 62 N.E. 100.)

The trial court may order the husband to advance money to pay for services already rendered and expenditures already made. (Taylor v. Taylor, 33 Idaho 445, 196 P. 211.)

A suit for separate maintenance may be maintained by the wife against the husband independent of any action for divorce. (C. S., sec. 4654; Simonton v. Simonton, 33 Idaho 255, 193 P. 386; Galland v. Galland, 38 Cal. 265; Livingston v. Superior Court, 117 Cal. 633, 49 P. 836, 38 L. R. A. 175.)

The allowance of $ 5,000 for attorneys' fees in this case is reasonable. (Walling v. Walling, 36 Idaho 710, 214 P. 218; Day v. Day, supra.)

TAYLOR, J. Hartson, D. J., Reed, D. J., concurring, Wm. E. Lee, C. J., concur in the conclusions. BUDGE, J., concurring in part and dissenting in part.

OPINION

TAYLOR, J.

Plaintiff brought this action for divorce on the ground of desertion alleged to have occurred subsequent to May 18, 1921. Defendant answered, denying desertion and setting up as an affirmative defense that "by reason and on account of the condition of health of the plaintiff and his failure to provide for her or furnish her a home, she has lived separate and apart from him since in the autumn of 1921, and that her doing so was rendered necessary by reason of the plaintiff becoming ill some time about the month of September, and having to be taken to a sanitarium," alleging conditions thereafter...