127 Minn. 96 | Minn. | 1914
Action for divorce in which plaintiff had judgment and defendant appealed. The action was predicated, by the allegations of the complaint, upon the alleged cruel and inhuman treatment of plaintiff by defendant. Defendant by answer denied the allegations of the complaint, and interposed a cross-complaint, and alleged therein cruel treatment of her by plaintiff, and she prayed for a limited divorce with alimony. At the trial below the court dismissed, defendant’s cross-complaint for lack of evidence to support the same, found the allegations of plaintiff’s complaint substantially true, including the allegations of cruel and inhuman treatment, and ordered judgment of absolute divorce, making no order, however, respecting the care and custody of the children. The court also gave judgment in favor of defendant in the sum of $50,000, as personal alimony and suit money, which was declared a specific lien upon certain described real property owned by plaintiff. Defendant subsequently moved for a new trial, on the ground, among others, that the finding of cruel and inhuman treatment by defendant toward plaintiff was not sustained by the evidence, and that the award of alimony was inadequate. The motion was denied, and there was an appeal from that order as well as from the judgment.
The 28 assignments of error, so far as argued in the briefs, present but two questions, namely: (1) Whether the findings of cruel and inhuman treatment on the part of defendant toward plaintiff are sustained by the evidence, and (2) whether, in view of the value of the property owned by plaintiff and the situation and circumstances of the parties as disclosed by the record, the award of alimony to defendant is inadequate ?
We are unable to concur in the contention that the trial court should have awarded to defendant a full one-third of plaintiff’s property. The statutes provide (section 7128, Gr. S. 1913) that such award shall be made in cases of this kind as the situation of the parties, the circumstances of the case, and the ability and financial worth of the husband, the court shall deem fair and just, “not exceeding in value the one-third thereof.” While the court might in a particular case grant to the wife the full one-third of the husband’s property, there are reasons why that conclusion should not be reached in the case at bar. Defendant is given a life estate in the family homestead, fully furnished, and an annual allowance of $3,000. The four children of the marriage must be supported by plaintiff, and' the allowance made is for the sole benefit of defendant, no part of which is she under any legal obligation to expend for their care. If the custody and education of any of the children had been by the court committed to her care, she probably might insist that the allowance was inadequate. And though the younger children, and probably all of them, will remain with the mother, at the family-home, plaintiff will without doubt perform all his obligations-in "respect to their comfort and support. So that with the homestead and an annual income of $3,000, if continued during her .life, we think defendant has no serious cause for complaint. The amount will provide fully for all her comforts. Such a result was intended by the trial court, as disclosed by its memorandum attached to the findings and order for judgment; wherein it was said: “It would * * *. be unjust and unreasonable, in view of the character and situation of
But it may seriously be doubted whether the form of the order and judgment will accomplish that end, and secure to defendant a life time support. The award of $50,000 was granted as “personal alimony,” is subject to revision by the court, and is not a fixed sum to be paid as a distributive share of plaintiff’s property. Haskell v. Haskell, 116 Minn. 10, 132 N. W. 1129; Blake v. Blake, 68 Wis. 303, 32 N. W. 48. The general rule, supported by the weight of authority, in respect to an award of alimony in a definite sum of money, payable in instalments at future dates, in the absence of some statute or provision in the decree to the contrary, is that the allowance terminates at the death of either party. 1 Ruling Case Law, 933; Wilson v. Hinman, 182 N. Y. 408, 75 N. E. 236, and notes to the report of that case in 108 Am. St. 820, and 2 L.R.A.(N.S.) 232. We have no statute in this state covering this subject, and if the rule stated applies here, a question we do not stop to determine, then .the period during which the alimony must be paid under this decree depends for its continuance upon the life of plaintiff and not upon the life of defendant; the reverse of what was intended by the court below. We fully concur with the trial judge, and for reasons stated by him, that defendant is entitled, under the facts of this case, to liberal support from plaintiff during the remainder of her life, and to effect this end, conclude that the judgment appealed from should be so modified that the matter will be put beyond future controversy. To this end the judgment will be so modified as to direct the payment by plaintiff to defendant during the remainder of her life the sum of $3,000 annually, payable in quarterly instalments of $750 each, commencing on the first day of January, 1915, with interest on each instalment after maturity at the rate of six per cent per annum; that the judgment be declared a lien upon the real property described therein, as now provided subject to discharge as therein stated, and that the judgment and the right of defendant to have and receive the payments shall con
The order denying a new trial is affirmed.
On October 8, 1914, the following opinion was filed':'
It appearing that subsequent to the filing of the opinion herein defendant has been paid the sum of $200, on account of alimony awarded by the court below, and it further appearing that in fairness this amount should be deducted from the $3,000 ordered paid by the decision of this court, it is ordered that the opinion be modified by reducing the payment ordered made within thirty days to the sum of $2,800.