Opinion
No. 5015.
July 31, 1928.
APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. W.F. McNaughton, Judge.
Action for divorce. Judgment for plaintiff. Affirmed.
Miles F. Egbers and James F. Ailshie, for Appellant.
It is the duty of the court to award to the innocent party more than one-half of the community property when the divorce is granted for extreme cruelty. (C. S., sec. 4650, subds. 1 and 2; Eslinger v. Eslinger, 47 Cal. 64; Thomsen v. Thomsen, 31 Cal.App. 185, 159 P. 1055; Carter v. Carter, 39 Idaho 798, 230 P. 768.)
The court must consider expert testimony as a basis for findings and judgment awarding attorney's fees and expenses to the wife in an action for divorce. ( Callahan v. Callahan, 33 Idaho 241, 192 P. 660.)
In exercising the judicial discretion which regulates the amount of permanent alimony, among other things the consideration of what persons, if any, each is under a legal duty to support must be considered as a circumstance of the parties respectively. (C. S., sec. 4644; 2 Bishop on Marriage, Divorce and Separation, 401.)
A wife, in whose favor a decree has been entered, must be provided for by the judgment of the court, in such sums as to enable her to live in as comfortable and favorable situation as she occupied during marriage. ( Day v. Day, 15 Idaho 115, 96 P. 431; 19 C. J. 249; Canine v. Canine, 13 Ky. Law Rep. 124, 16 S.W. 368.)
By the marriage respondent assumed the responsibility of providing for appellant's minor children of a former marriage. ( Harris v. Lyon, 16 Ariz. 1, Ann. Cas. 1916A, 1175, 140 Pac. 825; Kempson v. Goss, 69 Ark. 451, 64 S.W. 224; 29 Cyc. 1667; 20 R. C. L. 594; Magnuson v. O'Day, 75 Wn. 574, Ann. Cas. 1915B, 1230, 135 P. 640.)
Ezra R. Whitla, for Respondent.
"It is not necessary to make proof of the value of the services of counsel in a divorce case where an allowance therefor is made at the conclusion of the trial, for the court may determine the matter from its own experience and the circumstances as disclosed by the record." ( Cochran v. Cochran, 93 Minn. 284, 101 N.W. 179.) In that case the court said further: "In this case the court was fully advised by the record as to the extent of the services of plaintiff's counsel, and all the circumstances of the case, including the value of defendant's property."
That is exactly so here. The judge who made the allowance heard the entire case, was familiar with every phase of it and surely was in position to say what was the proper attorney's fee.
Where a case is appealed to the supreme court the court is not bound by the testimony of witnesses but may exercise its own discretion as to the allowance on appeal. ( Bolton v. Bolton, 98 Neb. 625, 154 N.W. 213.) In that case the court said as follows: "In a matter concerning the compensation of attorneys engaged in the trial of divorce cases appealed to this court the supreme court is at liberty to exercise its own judgment and discretion as well as to avail itself of the estimates placed by experts upon the value of the services."
Disposition of property entirely in the discretion of court. The rule was plainly enunciated by the supreme court of California in Rose v. Rose, 112 Cal. 341, 44 P. 658, where they say: "A division of the property between parties to a divorce case rests primarily with the trial court, and will not be disturbed except for a palpable abuse of discretion. . . ..
"The complaint made as to the inequitable division of the property between the parties would appear, from all the evidence presented, to possess, possibly, some just foundation in fact, if the discretion rested primarily with us, since to our minds, the defendant would seem to have been treated, perhaps, a little harshly by the court below. But it is a question committed to the justice and discretion of that court, whose opportunity to judge of the equities, by reason of seeing and hearing the witnesses, is superior to our own and whose determination of the question we are not at liberty to disturb, except for a palpable abuse, which certainly the record before us does not enable us to declare."
This court in Donaldson v. Donaldson, 31 Idaho 180, 170 Pac. 94, sustained the same rule, stating as follows: "The matter of the disposition of community property, where a divorce is granted upon the grounds of extreme cruelty, is a matter in the first instance committed to the discretion of the trial court. . . . ."
Respondent under no duty to take care of appellant's children. Counsel in his fifth assignment claims that there is somewhere, somehow, some way, an obligation upon the respondent to take care of his stepchildren. Of course that is not the law, and never has been. The cases he cites are directly against him. For instance, Harris v. Lyons, 16 Ariz. 1, Ann. Cas. 1916A, 1175, 140 P. 825, was simply a guardianship proceeding where the stepfather had voluntarily taken the child to raise and later attempted to recover the expenditures back. In that case, quoting from In re Besondy, 32 Minn. 385, 50 Am.Rep. 579, 20 N.W. 366, the court said: ". . . . And, a stepfather is, of course, not bound to maintain the children of his wife by a former husband."
In Kempson v. Goss, 69 Ark. 451, 64 S.W. 224, cited by appellant, the court said: "In the absence of a statute requiring it, one is not bound to maintain the minor children of his wife by a former husband."
Magnuson v. O'Dea, 75 Wn. 574, Ann. Cas. 1915B, 1230, 135 Pac. 640, 48 L.R.A., N.S., 327, does not in the least sustain appellant.
Wood v. Wood, 61 App. Div. 96, 70 N.Y. Supp. 72, is, however, directly in point upon this case. The court said: "An award of alimony to plaintiff in divorce, including an allowance for the support and maintenance of the son of her husband by a former marriage, is void."
The parties intermarried on November 7, 1925. On October 28, 1926, appellant brought this action for divorce on the ground of extreme cruelty, asking for partition of the community property, permanent alimony and attorney's fees. Decree was entered granting the prayer for divorce, awarding appellant $500 permanent alimony, $250 attorney's fees and one-half the community property. She appeals from that portion of the decree affecting the distribution of the property, the award of permanent alimony and the allowance for attorney's fees.
It is urged that the trial court erred in awarding appellant only one-half the community property; that, when a divorce is granted on the ground of extreme cruelty, the evident intent of C. S., sec. 4650, is that the injured party should be awarded more than one-half the community estate. While it has been said that such is the inference of the statute ( Eslinger v. Eslinger, 47 Cal. 64), this court has held that the matter of the disposition of the community property, where a divorce is granted on the ground of extreme cruelty, is primarily committed to the discretion of the trial court. ( Donaldson v. Donaldson, 31 Idaho 180, 170 P. 94; Carter v. Carter, 39 Idaho 798, 230 P. 768.) The division made appears to be equitable and will not be disturbed.
Complaint is made of what is termed the "trifling allowance" of $500 for permanent alimony; one of the grounds of complaint being that the trial court "refused to consider appellant's children of a former marriage . . . . as one of the circumstances to be considered in awarding a suitable allowance of alimony . . . ." C. S., sec. 4644, provides that, where a divorce is granted for an offense of the husband, the court may compel him to provide for the children of the marriage, and to make such suitable allowance to the wife for her support as the court may deem just. The statute makes no provision for alimony for the maintenance and support of children of the wife by a former marriage.
In determining the amount of permanent alimony to be awarded no fixed rule may be applied. The amount is largely in the discretion of the trial court and it is only where there is a manifest abuse of discretion that its award will be interfered with on appeal. (19 C. J. 264.) Appellant, within less than a year after her marriage, and on very slight evidence of extreme cruelty, has sought and obtained a divorce. The record plainly shows that respondent's income, during the year the parties were married, was received to a large extent from properties constituting his separate estate and that, as found by the trial court, his income did not greatly exceed the amount of expense of operation of his business and the cost of maintaining the family. In view of the facts and circumstances of the case, we are not disposed to disturb the award.
The trial court allowed appellant the sum of $250 for attorneys' fees. There was evidence that $500 was a reasonable sum to be allowed, and appellant urges, the evidence being uncontradicted, that "the trial court was divested of any discretion to fix and allow any sum other or less than that established by the testimony." This contention is without merit. In taking evidence for the purpose of fixing the amount of an allowance for attorneys' fees, the court is not trying an issue in the case, but is seeking for information as the basis of its order, and is not bound by the rules of evidence applicable to contesting litigants. ( Rose v. Rose, 109 Cal. 544, 42 P. 452. See, also, Kirk v. Culley, 202 Cal. 501, 261 Pac. 994.) The allowance made was reasonable.
It is finally urged that the court's finding that the value of the community estate was $600 is not sustained by the evidence; that the evidence shows, without contradiction, the value of the community estate was $1,531.95.
The first item of contention concerns a heating plant installed in a hotel during the period the parties were married, the hotel belonging to respondent prior to the marriage. Appellant claims that the heating plant, shown to be of the approximate value of $2,000, was purchased with community funds. The record is far from clear whether the heating plant had been paid for at the time of the trial and, if paid for, whether community funds were used therefor. In view of the pleadings, however, it is unnecessary to review the evidence in this respect. The complaint sets forth that the hotel was the separate property of respondent and makes no reservation of any community interest therein. An admission made in a pleading is binding on the party making it. (31 Cyc. 676.) Appellant has no cause for complaint because the court found the hotel to be the separate property of respondent. ( Weber v. Weber, 16 Or. 163, 17 P. 866.)
The court found that community funds had been used to the extent of $420 in payments made on a mortgage debt on a dwelling-house constructed by respondent previous to the marriage. Appellant urges that the community interest is $70 greater than the court found. The evidence bearing on this question was that of respondent that he had paid "altogether since I started $673," but that "I can't tell" how much of it was from funds accumulated previous to the marriage. He testified also that some payments had been made since the marriage, and it is apparently on this evidence that the court made the finding. The evidence furnishes no basis for determining the exact interest of the community, and the finding will not be set aside on her appeal.
Respondent testified that, during the existence of the marriage, certain persons became indebted to him on account for goods, wares and merchandise in the sum of $287.70, and appellant insists that such accounts should have been classified as community property. Technically appellant is probably correct in this contention. However, the stock of merchandise belonged to respondent before the marriage, and, in view of the brief period that the parties were married, it is most likely that the sales were from respondent's separate property. The court found of what the community property consisted and the accounts were not included. There is certainly no direct evidence that the accounts should have been classed as community property. A careful examination of the entire record has convinced us that the trial court was liberal in the awards to appellant. As has been said, the income from the relatively small amount of property owned by respondent did not greatly exceed the expense of family maintenance, including the support of appellant's minor children. The evidence on which the divorce was granted was meager, and in view of all the facts and circumstances, we have concluded that the decree should be affirmed.
No costs allowed.
Givens and Taylor, JJ., concur.