9 S.D. 48 | S.D. | 1896
This was an action for a divorce. The answer denied the material allegations in the complaint except the marriage, and contained a cross bill by the defendant for a separate maintenance. The action was tried by the court, and its findings of fact are as follows: “First. That the parties hereto have, by the appearance herein, conferred jurisdiction upon the court to hear and determine the issues herein, and that the court has jurisdiction of the subject-matter of this action. Second. That the plaintiff has for a sufficient time prior to the commencement of this action been a resident in good faith of the state of South Dakota to entitle him to maintain this action. Third. That the plaintiff and the defendant intermarried in the city of New York, state of New York, on the 27th day of September, A. D. 1887, and ever since have been, and now are, husband and wife. Fourth. That more than one year prior to the commencement of this action, and without the consent, procurement or connivance of the plaintiff, and free from collusion between the plaintiff and defendant, the defendant did willfully desert the plaintiff, and ever since, and up to the time óf the commencement of this action, continue to so willfully desert this plaintiff. Fifth. That there are issue of said marriage, two children, Annie Amelia, born September 7, 1888, and Mary Ellen, born January 14, A. D. 1891; that owing to the tender years of said children, the mother is the proper custodian of them; that the said mother, the defendant, has no means or property in her own right; that it will require at the present time, and for the immediate future, the sum of fifty dollars per month to enable the mother, this defendant, to furnish suitable support for said children. Sixth. That the counterclaim of the defendant is not supported by the proofs.” Upon these findings the court concludes as matters of law that plaintiff was entitled to judgment and decree of divorce, that the defendant take nothing by her cross bill, that she have the .care and custody of the two minor children, and that plaintiff pay to tjae defendant $50 per month for their maintenance.
The principal points relied on for a reversal of the judgment are that the evidence is insufficient to support the findings, except the third and first part of the fifth, to which no exceptions were taken. The court was requested to make other findings in accordance with the views of the appellant, which it declined to do, and to which an exception was taken. The record in this case is exceedingly voluminous, and any effort to condense the evidence so as to bring it within the limits of an ordinary opinion would be futile. But, if it could be done, no useful purpose would be subserved by such a review of the evidence, and we shall, therefore, only call attention to a few of the more prominent facts in the case. This action was commenced in the latter part of July, 1891, and it seems to be undisputed that the plaintiff came to this state, and settled or commenced to reside at Sioux Falls, early in April, 1891. At that time only 90 days’ residence was required to enable a party to institute proceedings for a divorce. It appeared that the plaintiff voted at the spring election in the city, and remained continuously in Sioux Falls until after the commencement of this action. In his testimony given at Sioux Falls in January, 1892, he says: “This has been my home since I arrived here in April. Have had no other home. I came to this city and state for the purpose of becoming a resident. I have exercised the right of franchise; voted here in the city at the last election. ” He further says that he had only been absent from the city for about three weeks since he came there. This evidence, not being controverted, was sufficient to justify the court ip. making its second finding of fact.
After a careful examination of the whole evidence, we may say that it was such that different minds might reasonably draw different conclusion therefrom; but this court cannot say there is a preponderance of the evidence against this finding of the court. The last clause of the fifth finding, we think, in view of the income and means of the plaintiff, makes a very liberal provision for the children of the marriage, and a provision of which the defendant cannot reasonably complain. But the circuit court, in failing to definitely fix the term during which said payments should be made, and in failing to require security for the payment of said sums of money promptly each month, did not, in our opinion, properly exercise its judicial discretion, and the omission of the court to make these provisions in the judgment renders its decision subject to review by this court. The court having found that the defendant has no means or property in her own right, we think it should have fixed the term for- which said monthly payments should be made until said children should attain the age of 21 years, subject to such change or modification as circumstances might require. We are also of-the opinion that the plaintiff should