Enders v. Enders
211 P. 549
Idaho
1922
Check Treatment
BUDGE, J.-

This action is one for divorce. Respondent in his complaint charged the appellant both with extreme cruelty and adultery. The answer of appellant was in *482effect a general denial. She filed a cross-complaint alleging extreme cruelty, the material allegations of which were denied. Decree of divorce was granted to appellant upon the ground оf extreme cruelty. The court below failed to award permanent alimony to appellant and also denied her aрplication for additional attorneys’ fees. From that portion of the decree this appeal is prosecuted.

Rеspondent and appellant were married on April 27, 1918, and separated on July 19, 1918. It would serve no useful purpose to encumbеr this opinion with the acts of extreme cruelty alleged and testified to by appellant and witnesses called in her behalf. Sufficе it to say that respondent denied that he, in any manner mistreated appellant or that he did her any physical injury, while, upon the other hand, appellant testified to having been shamefully beaten about her head and body, as a result of which she was comрelled to undergo two major operations. Upon ‍​​​‌‌‌‌‌​‌‌‌‌‌‌‌‌‌​‌​‌‌‌​​​‌​‌‌​​‌‌​‌‌‌‌​‌​​​​​‌‍the charge of extreme cruelty made by appellant the trial сourt made the following finding: “That plaintiff (respondent) did treat the defendant in *a cruel manner by striking defendant and using abusive language towаrd her and conducting himself toward her in such a manner as was inconsistent with his marital duties .... that said treatment has not impaired defendant’s hеalth permanently and at the time of said treatment plaintiff was angered by the conduct of the defendant and the same was nоt entirely unprovoked, as will appear as hereinafter found.”

In our opinion, while the evidence is conflicting, there is sufficiеnt competent evidence to support the finding of the trial court that the respondent “did treat defendant ... in a cruel and inhumаn manner,” by striking appellant and using abusive language toward her and that respondent’s conduct was inconsistent with his marital obligations. Wе know of no rule of law or common decency that would justify the infliction of such physical or mental suffering as was administered herе, no matter how provoking the conduct of one spouse towards the other may be.

*483It appears that respondent is possessed of considerable real and personal property. Although the same was heavily encumbered at the time оf the trial there remained an equity. This was his separate property. Appellant was without means of support and in destitute circumstances and as a result of the cruel treatment received at the hands of respondent her earning capaсity was considerably impaired. Taking all of the facts of this ease into consideration it would seem to us that the court abused its disсretion in denying appellant sufficient funds for her proper maintenance and support, especially as the decrеe of divorce was granted to her upon the ground of extreme cruelty. Had the court found appellant to be guilty of adultery or extreme cruelty as charged by respondent and thereupon refused to allow her alimony a different situation would be presented, but having reached the conclusion upon the evidence submitted that the respondent was guilty of such acts and conduct as constituted extreme cruelty and that appellant was innocent of the charges made against her, in view of her situаtion, the court should have made reasonable provision for her support.

The matter of the allowance or disallowance of alimony and attorneys’ fees in divorce actions is committed to ‍​​​‌‌‌‌‌​‌‌‌‌‌‌‌‌‌​‌​‌‌‌​​​‌​‌‌​​‌‌​‌‌‌‌​‌​​​​​‌‍the discretion of the trial court and unless such disсretion is abused, the judgment will not be disturbed. (Donaldson v. Donaldson, 31 Ida. 180, 170 Pac. 94.) We have reached the conclusion that the trial court did not abuse its discretion in refusing to аllow additional attorneys’ fees and that the allowance made in the first instance was not so unreasonable as to call for a reversal of its action in this regard.

It is clear that there is no community property. The wife has no separate property and there is no issue of this marriage. It therefore becomes important to determine the amount to be allowed аs alimony and whether the same may be allowed in a lump sum or in stipulated amounts at fixed dates.

*484C. S., see. 4644, provides as follows: “Wherе a divorce is granted for an offense of the husband, the court may compel him to provide for the maintenance of the children of the marriage, and to make such suitable ‍​​​‌‌‌‌‌​‌‌‌‌‌‌‌‌‌​‌​‌‌‌​​​‌​‌‌​​‌‌​‌‌‌‌​‌​​​​​‌‍allowance to the wife for her support as the court may deem just, hаving regard to the circumstances of the parties respectively; and the court may, from time to time, modify its orders in these resрects.”

California Civil Code, sec. 139, is practically identical with C. S., sec. 4644, su-pra. Under the construction placed upon the Californiа statute by the supreme court of that state, permanent alimony may be awarded either in a lump sum or in stipulated amounts pаyable at fixed dates. (Robinson v. Robinson, 79 Cal. 512, 21 Pac. 1095; Huellmantel v. Huellmantel, 124 Cal. 583, 57 Pac. 582; Parker v. Parker, 55 Cal. App. 458, 203 Pac. 420.)

Under similar statutes in other states ‍​​​‌‌‌‌‌​‌‌‌‌‌‌‌‌‌​‌​‌‌‌​​​‌​‌‌​​‌‌​‌‌‌‌​‌​​​​​‌‍the same rule has been laid down. (Jeter v. Jeter, 36 Ala. 391; Piatt v. Piatt, 9 Ohio, 37; Williams v. Williams, 6 S. D. 284, 61 N. W. 38; Hedrick v. Hedrick, 28 Ind. 291; Burrows v. People, 107 Mass. 428; Wheeler v. Wheeler, 18 Ill. 39; Buckminster v. Buckminster, 38 Vt. 248, 88 Am. Dec. 652; Hooper v. Hooper, 102 Wis. 598, 78 N. W. 753, 44 L. R. A. 725; De Roche v. De Roche, 12 N. D. 17, 1 Ann. Cas. 221, 94 N. W. 767.)

In the case of Green v. Green, 152 Ky. 486, 153 S. W. 775, at 777, it is said: “Where the husband and wife have been separated by a judgment of divorce, and the husband’s estate justifies the payment of a lump sum as alimony, we think it is the better rule to sо allow it. It promotes the peace and happiness of both parties by having their financial relations terminated by a single payment of alimony, rather than raise further irritations by possibly repeated efforts to recover it by judicial proceedings.”

See also to the same effect, Huellmantel v. Huellmantel, supra; Tremper v. Tremper, 39 Cal. App. 62, 177 Pac. 868.

From a careful consideration of the entire record, the situation of the parties, their earning capacity and the *485financial standing of respondent we have reached the following conclusion: That respondent should be required to pay into the trial court as alimony for the use and benefit of appellant, the sum of $1,000, to be paid in four equal instalments, $250 within thirty days after the going down of the remittitur, and $250 each ninety days thereafter, ‍​​​‌‌‌‌‌​‌‌‌‌‌‌‌‌‌​‌​‌‌‌​​​‌​‌‌​​‌‌​‌‌‌‌​‌​​​​​‌‍with interest at the legal rate until the whole of said amount shall have beеn paid. That the decree of the lower court should be modified as herein indicated, and when so modified it will be affirmed. For the reason that the. respondent has paid, under various orders of the court, all costs incurred herein, no costs will be awarded.

McCarthy, Dunn and Lee, JJ., concur.