181 P. 168 | Utah | 1919
Lead Opinion
Plaintiff brought suit against the defendant, her husband, for separate maintenance. The grounds alleged were cruelty. The defendant denied cruelty. The trial court found the issues for the plaintiff, and by its decree awarded her separate maintenance, attorney’s fees and costs. The court ordered that the defendant be restrained from disposing of or incumbering his property without leave of court. It was also decreed that the alimony awarded the plaintiff should be/ a lien and charge upon the defendant’s property until the further order of the court. Defendant appeals.
The defendant complains that the trial court erred and assigns as grounds for reversal the following: (1) That the evidence is insufficient to sustain the finding of' the court that the plaintiff, without her fault, lives separate and apart from
(A) The first and principal contention made by defendant has necessitated our reviewing the testimony. After so doing we would not feel justified in holding that the decision of the trial court is not supported by a fair preponderance of the testimony. It is apparent, however, that in some measure, at least, the plaintiff was not entirely without, fault. The testimony shows that oftentimes the differences between the parties were over matters trivial in nature, and in the disputes that followed they were equally to blame. However, on several occasions, the defendant,, without sufficient cause or excuse, commanded the plaintiff to leave the house to “get out and go — get out of my house; I don’t want you sticking around here; rustle your own living.” Again, the plaintiff testified, referring to the defendant’s attitude toward her in the home: “He told me time and again to get out and go; that he was through with me. ’ ’ The plaintiff further testified that on these and other occasions referred to in the testimony the defendant’s attitude towards her was such that she became so nervous and sick as to require medical aid and treatment. There is also testimony in the record tending to show that the plaintiff on these occasions endeavored to effect a reconciliation with the defendant, without avail. Indeed, during the progress of the trial, after the defendant expressed a willingness to live with the plaintiff, the court afforded the parties an opportunity to adjust their differences,
(B) It follows from what has already been said that there is no merit in the defendant’s contention that the trial court erred in failing to expressly find that the defendant had without good and sufficient cause deserted the plaintiff, and whether the defendant, having sufficient ability, had neglected or refused to provide and suitably maintain the plaintiff.
It is fundamental that, if the conduct of the defendant towards the plaintiff was such as to legally entitle her to live separate and apart from the defendant, she
(C) As to the third and fourth contentions made by defendant we think the rule is firmly established that in suits of this nature, where alimony is allowable, in order
(D) There is absolutely no merit in the contention made that the plaintiff is not entitled to the attorney fee allowed her by the trial court. We think the trial court
Tbe plaintiff, on tbe appeal to this court, made and filed certain cross-assignments of error. After reviewing tbe record, we can arrive at no other conclusion than that tbe judgment and decree rendered in plaintiff’s favor was right and should be affirmed. "We therefore need not enter upon a discussion of plaintiff’s cross-assignments.'
It is ordered that tbe judgment and decree of tbe district court be affirmed; costs to respondent.
Rehearing
ON APPLICATION POR REHEARING.
Counsel for defendant has filed a petition for rehearing. Tbe matters complained of in tbe petition were all given due consideration in our former opinion, and we still think we were right in tbe conclusions arrived at.
Defendant seriously complains of tbe order of tbe district court enjoining him from incumbering, selling or otherwise disposing of any of bis property and in making tbe award for ■'the separate maintenance of the plaintiff a lien thereon.
It seems hardly necessary to thus incumber and enjoin the sale and disposal of all of tbe defendant’s property in order to secure tbe prompt payment of tbe award for