Griffin v. Griffin

18 Utah 98 | Utah | 1898

Per Curiam. •

The fact' that the plaintiff, a married man, met Miss Berkman, who was a stranger to him, on a railway train and went to Los Angeles with her and afterwards followed her to Passadena, and there called on her several times, how many does not appear, took her out driving in a carriage and also on horseback, and that she was at the railway station at the former city to bid him good bye when he started home is very unusual conduct for a well-meaning married man, and especially so when the strange woman has been divorced from her husband, and is young and attractive. Such conduct casts a shadow upon their associations, intercourse and intentions. The fact that she stopped over in Salt Lake City, where he resided, and they met again and he showed her about the city, and after returning home to St. Paul, Minnesota, she again returned to Salt Lake and met him at the Sanitarium, where he was rooming, he in the meantime having deserted his wife and child, throws further suspicion upon them; and the further, facts that they thereafter went to the same house occupying bedrooms with an unfastened door between them the most of the time, until he determined to sue for divorce and commenced preparing for a trial, and that he followed this woman up wherever she moved, boarded and ate with her; that they were seen in very compromising positions in his bedroom; that she sent his clothes to the laundry with hers, with the same mark upon them, and her statement that she was going to the hospital, and if she was in a family way it would be by plaintiff, and the fact that most of the' time she was living and sleeping in the same bed with another who was not living with her husband, and whose reputa- - tion for chastity was bad, and that Miss Berkman’s reputation was also bad, (as to this latter fact, however, there was a conflict in the evidence) with all the other evidence in the case leaves no room for a reasonable belief that the plaintiff did not commit adultery as charged by his wife in her cross-complaint. It is true Miss Berkman denies, under oath, that she was seen in the compromising positions to which the witnesses testified, and denies the statement ‘ ‘ If, she was in a family way it would be by Griffin, ” and it is true that both deny there was at any time illicit intercourse between them. It is also true that some other witnesses testified in their behalf. But the statements of plaintiff and Miss Berkman must be weighed in the light of their motives to prevent disgrace and defeat in a lawsuit and to exculpate them of a crime which might subject the plaintiff to confinement in the penitentiary for the term of three years, he at the time being married, and the woman to confinement in the county jail for the term of six months, she being an unmarried woman. The statements of plaintiff with the penitentiary before him, and those of Miss Berkman face to face with the county jail, and both with impending humiliation and disaster in case of defeat hanging over them, their denials can be given but little weight, as we think.

We fail to find from the evidence any sufficient motive to induce {he witnesses, who stated the most damaging facts against them, to testify falsely, and in the light of all the other evidence, their statements do not appear to be unreasonable.

We are of the opinion, therefore, the court below erred in finding the plaintiff was not guilty of adultery with Cora E. Berkman, as alleged in defendant’s cross-complaint.

The defendant has not appealed from the finding that the plaintiff was guihy of cruel treatment of defendant, though it is assigned as error, and was discussed by counsel in their arguments. "We will not consider the evidence bearing on that charge further than is deemed proper to notice it in deciding the other issues.

The finding of the court, to so much of the decree as grants alimony to the defendant, is assigned as error. A general rule by which to determine the amount of alimony to be allowed the divorced wife is laid down in Sec. 1029, 2 Bishop on Marriage, Divorce and Separation, as follows: “The dissolution of a marriage by divorce is analogous to its dissolution by death. A judicial separation from bed and board is partly so. In a sort of general way with variations after which it is not needful here to inquire, the common law gives the widow on the death of the husband one-third of his estate. So that, looking at this sort of analogy, if one-third of the husband’s income will leave the wife on divorce as well off pecuniarily as though the cohabitation continued, with something in compensation for her injury, such, when not reduced by a separate income of her own, may well be regarded as a sort of common, matter-of-course proportion.”

This is a general rule deduced from a consideration of the authorities by the author. The amount should be varied, however, in view of peculiar facts and circumstances. Conceding the admission of plaintiff that he is worth $14,000 (which in view of the evidence is a low estimate) according to the rule $4,GG6 should have been awarded the defendant on the basis of a gross sum; or o,n the basis of plaintiff’s net income, fixed by himself at $1,200 (which, from the evidence, we also think is a low estimate) defendant should have been allowed $400 per annum. The findings and decree gave her their homestead which the plaintiff valued at $3,500, with an incum-brance on it of ’$2,500. That would amount to only $1,000, and the title of this property is in the Deseret Savings Bank. ' The court also allowed her a cart, horse and harness, and the household furniture, the value of which the evidence does not enable us to fix precisely. Second-hand furniture is worth much less than new. The entire alimony allowed the defendant is probably less than $2,000, when she should have been allowed $4,666, on the basis of a gross sum, or $400 per annum, on the basis of plaintiff’s income.

The $240 per annum, allowed by the court for the support, nurture and education of his infant son cannot be regarded as alimony for the benefit of defendant. It is plaintiff’s legal duty to pay for the support and education of his child; but in case he shall elect to live with his mother after he may legally chose for himself, the father should continue to pay for his support and education until he is brought up and educated, and that will not be accomplished by the time he is fourteen years of age— probably not before he is eighteen. The decree does not require the plaintiff to pay for such support and education after his son is fourteen.

We are of the opinion the court erred in its allowance of alimony to the defendant. The court should have required the plaintiff to pay defendant $2,500 in addition to the homestead, the furniture, horse, harness and cart given her by the decree.

The defendant assigns as error, so much of the findings and decree as forbids the defendant from taking her son beyond the limits of this State.

It appears from the evidence that defendant’s parents reside in the State of Iowa, where she lived until recently. Her welfare, and the best interests of the child might demand a return to her parents and friends there, though outside of the State.

We are of the opinion that so much of the findings, conclusions of law and decree as forbids her from taking her son oeyond tbe State, without the consent of the plaintiff is erroneous.' We are also of the opinion that so much of the findings and decree assigned as error as authorizes the plaintiff to take defendant’s son, whose custody was given her by the decree, without her consent away from her home and where he may chose, so he return him during the day, and as allows the plaintiff, without her consent, to take the child out of her presence and associate and converse with him out of her hearing was erroneous, in view of the fact that plaintiff had charged her falsely, as appears from the record and evidence, with habitual drunkenness, and with visiting opium dens, and of the fact that on the dajr the case was set for trial he filed an amended complaint charging her falsely with the crime of adultery with different men, and in view of the evidence that plaintiff at one time placed the child in the custody of an agent who knocked her down and otherwise maltreated her when she attempted to regain the custody of him, and in view of plaintiff’s desertion of his wife and child, and his association with women of bad repute, and of his adulterous relations with one of them, as we have found, and of the fact that when she implored him to return to his family he refused to do so and abused her and applied opprobrious language to her. The court might authorize the plaintiff, in an orderly manner, to visit and converse with his son at reasonable intervals and at proper times we have no doubt.

We find no further error in this record. The cause is remanded with costs against plaintiff, and the court below is directed to change the findings, conclusions of law and decree so that it shall conform to this opinion.