Detert v. Detert

MR. JUSTICE ERICKSON delivered the opinion of the court. Otto F. Detert and Mary F. Detert were married on the 18th day of February, 1939, at St. Ignatius, Montana. Both of them had been married before. At the time of their marriage the husband was some sixty years of age, and Mary F. Detert was about forty years old. Each of them had children by their prior *316 marriages. At the time of their marriage, Mrs. Detert was operating a restaurant in the town of St. Ignatius. The husband, the plaintiff in the action below, owned a farm in Lake county, another farm in Minnesota and other property. After their marriage a house and lots were acquired in the town of St. Ignatius. On April 1, 1939, the plaintiff in the office of the late John P. Swee, then a practicing attorney in Lake county, executed deeds to his Montana property in which the defendant was named as the grantee. These deeds he handed to the defendant and later they were placed in a safety deposit box by the plaintiff and the defendant in the bank at Ronan. Some time later the parties to this action went to the bank at Ronan and took the deeds from the safety deposit box and took them to their home. On November 2, 1940, these deeds were recorded in the office of the Clerk and Recorder for Lake county. Some time in June of 1941 the defendant left the state of Montana on a trip and from that time on, for all practical purposes, the parties ceased to live together. On the 21st day of June, 1941, the plaintiff brought an action in equity to set aside the deeds above mentioned on the ground that they were fraudulently obtained and it was not his intention that they be recorded until after he was dead. The trial was had in the district court for Lake county and judgment was entered for the plaintiff. The record of that trial was presented as evidence in this action and it was admitted together with the findings of the court and its judgment. In that trial the plaintiff testified that he deeded his Lake county property to the defendant as set out above, but that it was not his intention at the time he made the deeds that they be effective until after his death. He testified that he did not discover that the deeds had been recorded by the defendant until she had left on the trip above referred to. The defendant and her witnesses, including the attorney who drew the deeds which plaintiff sought to set aside, testified that plaintiff voluntarily made and executed the deeds and delivered them to the defendant in the witness’ office. The testimony of an attache of the Clerk and Recorder’s office of Lake county strongly indicated that plaintiff was present with the defendant *317 when she had the deeds placed of record. There is uneontroverted testimony on the part of representatives of two fire insurance companies that between the recording of the deeds in November, 1940, and his asserted first knowledge thereof in June, 1941, plaintiff transferred to defendant the fire insurance policies on the premises covered by the deeds, in one instance presenting the assignment personally and stating to the agent that he had deeded the property to defendant. The trial court, however, found generally in favor of the plaintiff and entered judgment setting aside the deeds. While the action to set aside the deeds was pending plaintiff filed this action for divorce and set out the securing of the deeds by the defendant as mental cruelty under the statute and claiming such cruelty as ground for divorce. To this complaint defendant filed an answer and cross-complaint. The trial court in the first action took cognizance of this action which was then pending for divorce, saying in No. 9 of the findings of the court, “that any equities the defendant may have to the plaintiff’s property which he owned at marriage or acquired during their short marital relations as also her dower right in the real property, this can be more appropriately considered and adjusted in the divorce action now pending between them than in this action.” After trial was had in this action judgment was entered denying the plaintiff any relief and awarding to the defendant on her cross-complaint a decree of divorce and a money judgment in lieu of alimony and other relief in the sum of $4,000 and attorneys’ fees. The judgment in this cause provided, however, “that the defendant shall execute and deliver to the plaintiff good and sufficient deeds of conveyance [of the property involved in the equity suit] as ordered and directed in that certain judgment entered in equity action No. 2487 in the above entitled court between said parties and that the defendant shall thereby deem said judgment rendered in said equity action as final and shall abandon her proposed appeal from said judgment. « * « ” From this judgment plaintiff appealed and defendant has filed cross-specifications of error, appealing only from the amount of the money judgment. *318 The questions presented by this appeal are: Does the answer and cross-complaint state a cause of action for divorce? Is the evidence sufficient to sustain the judgment, if the first question is answered in the affirmative; and was the money judgment excessive ? Before discussing the three propositions above set out it may be well to dispose of plaintiff’s contention that the court erred in not granting him the judgment for divorce. His chief argument is that defendant’s actions in securing the deeds above referred to and of putting them on record constituted mental cruelty and further that the findings and judgment of the trial court in the first ease are in effect res adjudicada and that the trial court in the divorce action was bound by them. While there can be no doubt that the judgment of the trial court in the equity action is res adjudícala as to the matters in issue there, that action did' not purport to, nor could it, determine the issues in this action which is one for divorce. That action and the plaintiff’s own testimony do reveal affirmatively and without question that the plaintiff claims the first knowledge he had that the deeds had been put on record was some time in June of 1941. This action was filed by plaintiff on January 7, 1942. Section 5738, Revised Codes, provides that to constitute cause for divorce, mental cruelty must exist for one year prior to the commencement of the action. The findings of the trial court in the first action are to the effect that prior to this date the parties got along very well together and that the plaintiff had every confidence in the defendant and reposed great trust in her. The plaintiff’s own testimony is to the same effect. According to him, the fact that the defendant had placed these deeds on record in November of 1940 was not brought home to the plaintiff until June of 1941. It can hardly be thought that the defendant’s action of November 2, 1940, in recording the deeds which did not come to plaintiff’s knowledge until June of 1941, immediately started the course of mental cruelty and suffering contemplated by the statute. (See Robinson v. Robinson, 66 N. H. 600, 23 Atl. 362, 15 L. R. A. 121, 49 Am. St. Rep. 632; MacDonald v. MacDonald, 165 Cal. 665, *319 668, 102 Pac. 927, 25 L. R. A. (n. s.), 45; Barnes v. Barnes, 95 Cal. 171, 30 Pac. 298, 16 L. R. A. 660.) It cannot be said that the evidence on the part of the plaintiff establishes mental cruelty within the requirement set up in this court in Argenbright v. Argenbright, 110 Mont. 379, 101 Pac. (2d) 62, and it is clear that plaintiff is not entitled to a divorce. The cross-complaint alleges cruelty on the part of plaintiff. This cruelty is specifically set out as follows: That from the beginning of the marriage of the parties and throughout their married life the children of the plaintiff violently and strenuously objected to the marriage between them, and constantly complained to the parties about the marriage and urged and insisted that the plaintiff convey his property to his children by his first marriage; that the children treated the defendant with disrespect and contempt, and that the plaintiff from time to time mentioned to the defendant these complaints and the hostility on the part of the children; that this treatment by the children caused her great mental pain and suffering and caused her to be in a high state of nervousness and nervous collapse; that the plaintiff acquiesced in the conduct of the children and permitted them to continue this conduct; that because of this conduct it was impossible for the plaintiff and defendant to continue to reside together as husband and wife in the community; that the plaintiff agreed to remove from the community but that he failed to do so even though preparations were made for moving. The second specific allegation of cruelty was that plaintiff had accused the defendant of being a dope fiend and engaged in the illegal sale of narcotics. It has been suggested that these accusations by the husband to the defendant alone and in the presence of others cannot be mental cruelty in view of this language from section 5738, Revised Codes, i. e., “the repeated publication or utterance of false charges against the chastity of the wife by the husband, * * * ” is extreme cruelty. It is difficult to take such a suggestion seriously Si view of the next portion of the same sentence from which the above quotation is taken, which defines extreme cruelty as “the infliction of grievous mental suffering *320 upon the other by one party to the marriage, by a course of conduct towards or treatment of one party to the marriage by the other, existing and persisted in for a period of one (1) year before the commencement of the action for divorce, which justly and reasonably is of such a nature and character as so to destroy the peace of mind and happiness of the injured party * * No case is cited in support of this novel suggestion and we have found none. (See Argenbright v. Argenbright, supra, and the many cases therein cited.) Clearly, the cross-complaint sufficiently charges mental cruelty so as to state a cause of action. It is urged by appellant that the action of plaintiff’s children may not be charged to him so as to make him guilty of cruelty. His contention is that the ordinary rule, as stated in 27 C. J. S., Divorce, section 25, p. 549, which makes the husband chargeable for the misconduct of his children toward his wife, is not applicable where, as here, the children have reached their majority. In this case we do not need to determine the abstract question whether, under the circumstances, the conduct of plaintiff’s children alone is sufficient to constitute cruelty on his part. The facts here are that there was much more than the hostile attitude and acts of the children toward defendant. While defendant had some knowledge of this conduct on the part of the children, the main information she had as to it was conveyed to her by the husband. He constantly reminded her of his children’s behavior. The testimony shows that on a great many occasions he told the defendant about the objections of most of his children to the marriage, of their fear that she would get all of plaintiff’s property, of their attempts to gfet the property deeded to them, of their general attitude toward the defendant, of their statements .to third persons, of their threats against her person, and of various other things which they were supposed to have said and done to indicate their dislike of the defendant personally and of their disapproval of the marriage. Defendant’s testimony is that these reports on the part of the plaintiff resulted in her nervous collapse and physical illness, and the testimony of others substantiates her testimony to this *321 effect. The reports of his children’s activities and statements eonld serve but one purpose, and that to drive home to her their attitude and thus destroy her peace of mind and happiness and make the continuance of their marriage relationship impossible. The record is entirely barren of any attempt on the part of plaintiff to do anything to alleviate the situation. The record does show that he agreed that it would be better to remove from the immediate vicinity of the children and took steps in co-operation with the defendant to move to some other locality, but at the last minute changed his mind. For cases similar in some respects to the one in question, see Day v. Day. 84 Iowa 221, 50 N. W. 979; Thompson v. Thompson, 205 Mich. 124, 171 N. W. 347, 3 A. L. R. 990; Hall v. Hall, 9 Or. 452. In addition to what is said above, the cross-complaint alleged that plaintiff had accused the defendant of being'a dope fiend. Defendant testified that plaintiff had accused her of using dope on several occasions, and one other disinterested witness testified that she overheard the plaintiff call the defendant a “dope head.” We think the evidence is sufficient to sustain the trial court as to the divorce. Both parties questioned the money judgment entered, plaintiff taking the view that it is excessive, and the defendant that it is insufficient. It would seem that both parties, in view of their subsequent action, are precluded from raising the question. As has been indicated above, plaintiff placed great reliance on the findings of the trial court in the first equity action involving the property as concluding the defendant, since she took no appeal from that judgment. But by the terms of the judgment in this case, the defendant was required, as a condition to her receiving the $4,000 award, to accept as final the judgment in the first case, to abandon her appeal therein, and to execute to the plaintiff the deeds required of her by that judgment. This she did, and on the argument it was admitted that plaintiff had accepted these deeds and placed them on record. Without considering the propriety of this provision the facts are indisputable that as a practical matter, in order to obtain the benefit of the alimony *322 provision, defendant did abandon her appeal in the prior action and did execute the deeds, and that the plaintiff accepted them and put them on record with full knowledge of all the circumstances. If now the decree in this case is reversed, either on the grounds that the alimony is excessive or improper, or upon the determining factor that defendant was not entitled to a divorce, defendant will take nothing under either suit, having abandoned her rights in the first in reliance upon the judgment in the second, with plaintiff’s acceptance of her action. Under the circumstances it would seem very questionable whether either has any standing here on appeal in an equity ease, although we do not rest our decision upon that point. Even though the parties had not precluded themselves from raising this question of the amount of the award, it seems clear that the trial court did not abuse its discretion in entering the judgment it did. Included in plaintiff’s assets of $25,600 was a note from his son for $12,000. This note represented the balance of the purchase price the son agreed to pay for the Minnesota farm. The findings of the trial court indicate that the district judge thought this note of little or no value. It is the defendant’s view that had the trial court figured this note at its face value, the judgment for the defendant would have been considerably higher, and that there was nothing in the evidence to warrant the district judge in assuming that the note could not be collected at its face value. The findings and the record do not show that had the note been considered at its face value the judgment of the district court would have been for any amount greater than the $4,000 awarded. The amount of an award in lieu of alimony in a divorce action is peculiarly within the discretion of the trial judge, and there is no fixed rule to guide the trial court in the exercise of that discretion. (Nuhn v. Nuhn, 97 Mont. 596, 37 Pac. (2d) 571; Cummins v. Cummins, 59 Mont. 225, 195 Pac. 1031.) The property of the husband, in the main, was acquired prior to the marriage. The parties did buy the Honan property after their marriage, and while the point is disputed, there is evidence *323 that the defendant contributed to the purchase price thereof. She further testified that she worked out as a practical nurse, and otherwise, during the course of their marriage and that whatever she earned was contributed to the family finances. Under the circumstances we cannot say that the trial court abused its discretion in awarding to the defendant in lieu of dower the sum of $4,000. The judgment is affirmed. Mr. Chief Justice Johnson and Associate Justices Anderson and Morris concur.