MacDonald v. MacDonald

236 P.2d 1066, 120 Utah 573, 1951 Utah LEXIS 239
CourtUtah Supreme Court
DecidedNovember 1, 1951
Docket7665
StatusPublished
Cited by69 cases

This text of 236 P.2d 1066 (MacDonald v. MacDonald) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
MacDonald v. MacDonald, 236 P.2d 1066, 120 Utah 573, 1951 Utah LEXIS 239 (Utah 1951).

Opinions

CROCKETT, Justice.

Plaintiff brought this action for a divorce; defendant counterclaimed for separate maintenance; her counsel asked at the trial to amend to ask for a divorce also. Judgment was for plaintiff, defendant appeals.

The numerous points she relies on for reversal fall generally under these two main contentions: (1) that the evidence does not support the judgment granting the plaintiff a divorce, but to the contrary requires judgment for her on her counterclaim; and (2) that the decree was inequitable and unjust to her. Certain other assignments of error, deemed to be of sufficient importance to notice in this opinion, will be treated incidentally.

One such error relates to the pleadings. The plaintiff’s complaint alleged cruelty and habitual intoxication for the past four years in general terms. The court denied the defendant’s motion to dismiss and for a more definite statement under Rule 12(e), U. R. C. P. At the trial, the plaintiff abandoned the ground of cruelty and relied entirely upon the allegation of habitual intoxication for the four-year period. No evidence of cruelty was introduced except as incidental to proving the ground of habitual intoxication. Therefore, the defendant could not have been prejudiced by the court’s refusal to require the plaintiff to make a more definite statement as to the cruelty he claimed. Under the new Utah Rules of Civil Procedure, the pleading was sufficient.

The parties married at Oakland, California, June 15, 1922; they have one child, Barbara Ann, age 25, who is now in a convent. About 1941, while the parties were still residing in California, the defendant began to drink intoxicating liquor excessively. By the time the parties moved to Salt Lake City in 1946, her drinking [577]*577had gone to such excesses as to present a considerable family problem. In 1948, a divorce action was filed by plaintiff which was thereafter dismissed and the parties reconciled. In June, 1949, the defendant spent a short period in the State hospital for observation and was released as being without psychosis. The trial court found that she had been guilty of habitual drunkenness for a period of at least four years; the evidence supports that finding.

The fact that the 1948 complaint was dismissed and the parties reconciled does not condone her prior conduct so as to wipe it out from consideration at the time of this trial; where the defendant’s misconduct is resumed, the law permits the injured party to assert all the prior misconduct, as well as that occurring subsequent to the condonation. Arnold v. Arnold, 76 Cal. App. 2d 877, 174 P. 2d 674; Burt v. Burt, 48 Wyo. 19, 41 P. 2d 524; Thum v. Thum, 105 Colo. 352, 98 P. 2d 279.

This appears to be one of those cases where the marriage had so far deteriorated that there was nothing for the court to do except to recognize the failure, and to use the fairly common phrase, “pronounce a benediction on the wreck”; then proceed to make the best arrangement of the property and income of the parties so that they could readjust their lives to the new situation as well as possible.

It is true, as plaintiff maintains, that this court has announced the doctrine that in divorce cases it will weigh the evidence and may substitute its judgment for that of the trial court. Dahlberg v. Dahlberg, 11 Utah 157, 292 P. 214; Hendricks v. Hendricks, 91 Utah 553, 63 P. 2d 277. Nevertheless, this court should not do so lightly, nor merely because its judgment may differ from that of the trial judge. We adhere to the qualifications set forth in the more recent expressions of this court: that the judgment will not be disturbed unless the evidence clearly preponderates against the finding of the trial court; or there has been a plain abuse of discretion; or where a manifest injustice or inequity is wrought. Anderson v. [578]*578Anderson, 104 Utah 104, 138 P. 2d 252; Allen v. Allen, 109 Utah 99, 165 P. 2d 872. See discussion of this point by Mr. Justice Turner in the latter case.

The assets possessed by the parties were as follows: Their home, valued at $13,000, less a $6,000 mortgage, net value $7,000; household furniture and equipment valued at $2,000; 1949 Hudson automobile valued at $1,400, less a lien of $212; a bank account of $6,948.25 in defendant’s name — which was the balance of an inheritance of $8,000 which she had received in 1950. Defendant also has an expectancy in the estate of her mother who was 82 years of age at the time of the trial. The plaintiff has been employed by the Chicago, Milwaukee, St. Paul & Pacific Railroad Company at a good salary for many years; he is at present general agent for that company at Salt Lake City at a gross salary of $481.80 per month, or a net of $387.56 after all deductions. The court awarded the defendant all of the assets except the automobile; ordered the plaintiff to pay her attorney’s fees in the sum of $250 and $378.10 payments in arrears. Except for the award of the assets just mentioned, the court made no allowance to the defendant for alimony except the sum of $10 per year which he awarded as a nominal sum. He stated,

“Such assets are sufficient to care for defendant * * * and should keep her in such fashion that she will not become a charge upon public authorities. Should defendant’s financial condition become such that she is in danger of becoming a public charge, the duty of support should fall upon the plaintiff and not upon the public authorities * *

Defendant complains that the court abused its discretion in not awarding her substantial alimony; in not imposing a higher duty upon plaintiff than merely to see that she does not become a public charge. She states pointedly,

“After 29 years of marriage which almost totally wrecked my life physically and mentally, how magnanimous of the court to decree that I may use my own money to live on.”

[579]*579She makes the valid contention that where there are sufficient assets and income to do so, she is entitled to be provided for according to her station in life and as demanded by her condition of health and lack of ability to work; that she should not be cast aside in her helpless condition to “sink or swim” or depend on others. With this argument, we agree. This misfortune falls not only upon their marital adventure; it falls upon and affects them both individually. It is part of the continuing responsibility of the marriage covenant: “in sickness, in health; for better or for worse * * *” which cannot be entirely avoided, even by divorce.

The trial judge awarded the divorce to the plaintiff and we do not question the correctness of his decision in that regard. Although the question of fault is not by any means to be entirely disregarded in determining the rights to property and alimony, it is settled that a spouse against whom a divorce is granted may under some circumstances be awarded adequate alimony. Alldredge v. Alldredge, 119 Utah 504, 229 P. 2d 681. However, there is very little likelihood that all of the fault was on one side. There is evidence that the plaintiff associated freely with another woman; that he has seen her seven or eight times a month; that he drank with her and took her to parties; that he went to her apartment and she to his;’ and that he bought her a gift. Just how this conduct on. his part is related by way of cause or effect to Mrs. MacDonald’s excessive drinking we are not able to divine.

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Cite This Page — Counsel Stack

Bluebook (online)
236 P.2d 1066, 120 Utah 573, 1951 Utah LEXIS 239, Counsel Stack Legal Research, https://law.counselstack.com/opinion/macdonald-v-macdonald-utah-1951.