Bokelmann v. Bokelmann

230 N.W. 638 | Minn. | 1930

¹ Reported in 230 N.W. 638. Action for divorce wherein defendant, by appeal from the judgment, seeks to review only the award of alimony in favor of plaintiff.

The statute (G. S. 1923 [2 Mason, 1927] § 8602) provides that "the aggregate award and allowance [of alimony] made to the wife from the estate of the husband under this section shall not in any case exceed in present value one-third of the personal estate, earnings, and income of the husband, and one-third in value of his real estate." The one point for defendant is that this statute has been violated in that plaintiff, his former wife, has been allowed more than one-third in value of his real estate, a quarter section farm. The property was found below to be worth $24,000. The 40 acres upon which the farm buildings are located was awarded the wife. That 40 was found worth $8,000, or just one-third of the whole. The award is not complained of otherwise. So far as it pertains to allowances out of the personalty of the husband it is not under attack. The power of the court within the limits fixed by statute to set apart to the wife "a specific part of the husband's real and personal property in severalty" is unquestioned. Longbotham v. Longbotham, 119 Minn. 139, 143,137 N.W. 387, 389.

There is evidence to support the findings, both as to the value of the whole farm and the 40 awarded the wife. For us to allow the argument for defendant that the 40 given plaintiff is in value more than one-third of the whole farm would require us to try anew the fact issue already tried and disposed of below, the resulting decision being warranted by the evidence. That, under the circumstances, we must refuse to do.

Judgment affirmed.