211 P. 549 | Idaho | 1922
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
Respondent and appellant were married on April 27, 1918, and separated on July 19, 1918. It would serve no useful purpose to encumber this opinion with the acts of extreme cruelty alleged and testified to by appellant and witnesses called in her behalf. Suffice 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 compelled to undergo two major operations. Upon the charge of extreme cruelty made by appellant the trial court made the following finding: “That plaintiff (respondent) did treat the defendant in *a cruel manner by striking defendant and using abusive language toward 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 health permanently and at the time of said treatment plaintiff was angered by the conduct of the defendant and the same was not entirely unprovoked, as will appear as hereinafter found.”
In our opinion, while the evidence is conflicting, there is sufficient competent evidence to support the finding of the trial court that the respondent “did treat defendant ... in a cruel and inhuman manner,” by striking appellant and using abusive language toward her and that respondent’s conduct was inconsistent with his marital obligations. We know of no rule of law or common decency that would justify the infliction of such physical or mental suffering as was administered here, no matter how provoking the conduct of one spouse towards the other may be.
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 discretion 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 allow 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 as alimony and whether the same may be allowed in a lump sum or in stipulated amounts at fixed dates.
California Civil Code, sec. 139, is practically identical with C. S., sec. 4644, su-pra. Under the construction placed upon the California statute by the supreme court of that state, permanent alimony may be awarded either in a lump sum or in stipulated amounts payable 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 so 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