85 P.2d 314 | Okla. | 1938
On November 20, 1933, the plaintiff in error, hereafter referred to as plaintiff, filed in the district court of Oklahoma county a petition for separate maintenance and alimony from the defendant in error, hereafter referred to as defendant. An ex parte order was made the same day whereby the defendant was directed to pay an attorney fee and to pay alimony pendente lite. The defendant, on November 22, 1933, filed in said cause an application to modify the order so made. Nothing further appears to have been done in the matter until July 9, 1934, at which time the application for alimony pendente lite and attorney fees was withdrawn by the plaintiff, and thereupon the defendant filed in the cause his answer to the petition of the plaintiff and a cross-petition wherein he sought a divorce from the plaintiff on the ground of extreme cruelty. The plaintiff neither replied to the answer nor answered the cross-petition of the defendant, and the parties thereafter, on May 13, 1937, proceeded to trial without, in any manner, challenging the sufficiency of the pleadings. The trial court gave the defendant a decree of absolute divorce from the plaintiff and certain property and gave to the plaintiff all of her separate property and the sum of $2,500 as representing her share of the jointly acquired property, and a further judgment for $2,500 as permanent alimony. The $2,500 awarded to the plaintiff as representing her share of the division of jointly acquired property was directed to be paid to her within 90 days and the alimony made payable at the rate of $50 per month until the entire amount awarded had been fully paid. The plaintiff appeals from the judgment so rendered and the order which overruled and denied her motion for new trial. The plaintiff assigns six specifications of error and thereunder contends in substance that the cross-petition of the defendant did not allege facts sufficient to support a decree of divorce in his favor and against plaintiff, and that the evidence is insufficient to support the decree of divorce rendered on the cross-petition of the defendant.
The sufficiency of the cross-petition, as we have stated before, was in no manner challenged in the trial court, but is in this court questioned for the first time. It is well settled that when the sufficiency of a petition or cross-petition is questioned for the first time, either in a motion for new trial or in this court on appeal, it will be held good if, by liberal construction, it states, even though somewhat defectively, a cause of action, and that such objection should not be sustained unless there is a total failure to allege some matter essential to the relief sought. McDaniels v. McDaniels,
The plaintiff next urges that there was not sufficient evidence to support the judgment granting the defendant a divorce on his cross-petition. In support of this contention the plaintiff insists that it was necessary that the proof show either "(1) that the conduct of the wife, plaintiff in error, had been such that the life or health of the defendant in error was endangered; or (2) that the plaintiff in error had been guilty of such conduct that the mental feelings of defendant in error were unjustifiably wounded; or (3) that the conduct of the plaintiff in error had so destroyed the peace of mind of defendant in error that his health had been seriously impaired and life endangered, or was such as utterly to destroy the legitimate objects and aims of matrimony." Cited in support thereof are Feyerherm v. Feyerherm,
"The conduct of either spouse which grievously wounds the mental feelings of the *125 other, or so utterly destroys the peace of mind of the other as to seriously impair the bodily health, or such as utterly destroys the legitimate end of matrimony, constitutes extreme cruelty, within the meaning of section 665, O. S. 1931."
This rule has subsequently been followed in the case of Stocker v. Stocker,
"In an action for divorce this court will consider all the evidence and weigh it to ascertain whether or not the judgment is against its weight, and if not clearly against the weight thereof, will affirm the judgment."
See, also, Roberts v. Roberts,
No contention is raised regarding the judgment with respect to division of property and alimony.
The judgment of the trial court is affirmed.
OSBORN, C. J., BAYLESS. V. C. J., and RILEY, WELCH, and PHELPS, JJ., concur.