188 P. 635 | Utah | 1920
This is an action for divorce and alimony and to set aside an alleged fraudulent conveyance of real property. It is also alleged in the complaint that the defendant Andrew Adam-son, Jr., has in his possession certain shares of mining stock in various mining companies, and that he, for his own use and benefit, has delivered the same to the other defendant.
The proceeding for divorce was not'contested, and a decree therefor, without alimony, was entered. The court also found that the defendant Andrew Adamson, Sr., did not have the mining shares in his possession, nor had he sold or disposed of them, or was holding them for the use of the other defendant.
The findings of the court concerning the divorce and shares of mining stock are not in question. The findings in relation to alimony and fraudulent conveyance of the real property are the only questions to be determined.
As to the real property, the complaint in substance alleges that on or about the 19th day of March, 1916, plaintiff and her husband, Andrew Adamson, Jr., wrere the joint owners of certain real property, each owning an undivided one-half thereof, in Murray City, Utah, upon wdiieh was a building consisting of two apartments of four rooms each, of the value of $3,000; that said defendant was also the owner of another
Plaintiff also alleges in an amendment to her complaint that defendant Andre*w Adamson, Jr., at the time of said conveyance, was indebted to her in the sum of $2,300, and that said conveyance was made to defraud her of said indebtedness, and of any alimony that might be awarded her by the court; that said defendant Andrew Adamson, Sr., was cognizant of the state of affairs existing between her and her husband.
The allegations of fraud in the conveyance, and that no consideration was paid therefor, were denied by the defendant Andrew Adamson, Sr., who alleged that he paid for said property the fair market value.
As to the alleged fraudulent conveyance, the court found the issues in favor of the defendant Andrew Adamson, Sr., and that plaintiff was not entitled to alimony in the divorce proceeding. Judgment was entered, quieting the title of said defendant to the property in controversy. Plaintiff appeals, and assigns as error the failure to allow alimony and numerous findings of the court relating to the transfer of the property.
There is nowhere in the assignments of errors, and nowhere in the record, any attempt on the part of appellant to specify particulars in which the evidence is insufficient, notwithstanding practically every finding of the court is challenged on
With these observátions, which are intended only as a reminder of duty, we will proceed to a consideration of the merits.
The evidence tends to show that, commencing with the year 1909 and down to the year 1916, several divorce proceedings occurred between the plaintiff and her husband. It seems to have become a fixed habit for one or the other of them to institute proceedings every once in a while, prior to the commencement of the present action. In the month of March, 1916, plaintiff and her husband were joint owners of a residence property in the town of Murray, Salt Lake county, of the value of about $2,500. The property consisted of two apartments each containing four rooms and a bath, and was being rented for about thirty dollars per month. At the time referred to there seems to have been a temporary suspension of hostilities between the parties; nevertheless there were mutterings of discontent portending the probability that another action by plaintiff might be commenced at any time.
Defendant Adamson, Jr., husband of the plaintiff, had been trying for some time to sell his interest in the real property which is the subject of this action, but was unable to find a purchaser. He and plaintiff had separated some time before, and were living apart at the time referred to. Plaintiff had refused to join in the conveyance, so that he was seeking to
For the last four or five years plaintiff has been living in Salt Lake City, conducting a rooming house, by means of which she has made her living. Her husband, during periods of amicable relations, lived with her down to about the year* 1915, since which time they have been living apart. The evidence also tends to show that plaintiff’s husband was indebted to her in the sum of about $2,300 at the time he conveyed the property to his father.
There is no evidence in the record concerning the question of alimony, the amount that should be awarded, defendant’s ability to pay, or that plaintiff’s necessities require that alimony should be allowed. Plaintiff’s rooming house business was paying her about $100 per month. Besides this, she had her interest in the residence property in question. As to whether she had any other property the record is silent. The defendant husband was addicted to drink, was without business, and as far as the record discloses had no property, except the property in dispute and the small lot referred to, which, as shown by the evidence, was worth less than $100, and was included in the conveyance made to his father. In these circumstances, the court, while granting the divorce for desertion and failure to provide, refused to allow alimony or costs of suit.
The granting or withholding of alimony in a divorce proceeding is a matter within the sound discretion of the court. In the case at bar we are not disposed to hold
The case of Stover v. Slover, 24 Utah, 92, 66 Pac. 766, cited, by appellant, shed's no light on the question here. The court in that case granted a divorce to the wife on the grounds of desertion and failure to provide. It found that defendant was able and willing to support, maintain, and educate the children, and that the plaintiff was not. It awarded the custody of the minor children to the defendant, and awarded alimony to the plaintiff in the sum of twenty-five dollars. The point was made that the decree was inconsistent with the findings, and this court reversed the judgment. A casual glance at the case discloses the fact that it differs from the cas$ at bar in nearly every essential particular. This is the only case cited by appellant on this particular question. We find no error in the conclusion reached by the trial court.
The court found that the conveyance was not fraudulent and that Andrew Adamson, Sr., by the conveyance in question became the owner of the property. This finding
Appellant’s counsel in their reply briefly recite the fact that the divorce was granted on the ground of desertion < and failure to provide. They then call our attention
Counsel also refer us to section 8346 of the same statute, which makes <it a felony for any person to falsely represent himself as competent tó sell or mortgage any real estate to the validity of which sale or mortgage the assent or concurrence of his wife is necessary. In view of the fact that this court, in Nielson v. Peterson, 30 Utah, 391, 85 Pac. 429, held that; where no declaration of a homestead has been made by either husband or wife, a mortgage given by the husband was valid and subject to foreclosure, it is difficult to understand what application can be made of that section to the case at bar. There is no pretense here that either husband or wife had made a declaration of homestead concerning the property in controversy. Under the authority above cited the husband had the right to sell his interest, subject only to his wife’s one-third interest in case she continued to be his
Counsel refer us to other sections of the Compiled Laws, but in our opinion they have no bearing upon the question here presented. It is extremely doubtful if we have not gone further than we should have done in considering the questions relating to homestead and homestead rights. No such question was raised in the court below, and as far as the record discloses the trial court had no opportunity to consider it. The complaint makes no claim of homestead rights, nor did the contention of plaintiff in the trial court present any such question.
The testimony in this case strongly tends to show that the defendant Adamson, Sr., purchased the property in good faith, and the testimony is quite conclusive that he
After a careful review of all the evidence, we are not prepared to hold that any finding of the court is against the clear preponderance of the evidence, or that the conclusions and decree are not supported by the findings.
The judgment of the trial cour| is affirmed, at appellant’s cost.