Read v. Read, 78 P. 675

Read v. Read

78 P. 675 | Utah | 1904

McCARTY, J.,

after stating the facts, delivered the opinion of the court.

The only question presented by this appeal is, did the court err in allowing respondent alimony? The awarding of alimony and fixing the amount thereof are *3011 questions, the determination of which rests within the sound discretion of the trial court; and, unless it is made to appear that there has been an abuse of discretion on the part of the court in dealing with one or both of these questions, its judgments and orders granting and fixing the alimony will not he disturbed.

2 In determining these questions, the amount of property owned by the husband, his capabilities and opportunities for earning money, the health of each* and their respective ages, the station in life in which the wife has been accustomed to live, and the amount and kind of her own property, will be taken into consideration by the court. 2 Bishop, Marriage & Divorce, 1006. By an examination of the foregoing facts, it will be seen that, aside from the dividends received on her mining stock, which are fluctuating and very unstable, respondent has no other means except that derived from her interest in the costly residence referred to in the statement of facts, which are wholly inadequate for her support. The record shows that her health is poor, and that she has no means of support other than- that derived from her property, whereas the appellant is now, and for years past has been, receiving salaries' amounting to $200-per month, and, in addition to the funds just received, has made money in other ways, which, with his salaries,'enabled him for two or three years next preceding the seperation of himself and wife (October 21, 1902), to pay the traveling expenses of his wife and grown daughter, who, according to the evidence, “traveled a great deal,” and also at the same time to furnish and maintain a home for himself, wife and daughter, all of which cost him from $300 to $600 per month. Under these circumstances, we do not think the court erred in finding that the earning capacity of the appellant is from $250 to $300 per month. Nor do we think the court erred in finding that the value of his property is equal in value to that of the property ■owned by respondent, as there is ample evidence in the .record to support the finding. In fact, there is evidence *302which tends to show the value of his property to he much greater than, that found by the court.

3 We are of the opinion, taking into consideration the respective ages of the parties, and the amount and kind of property owned by each, that $70 per month alimony is a liberal allowance; hut we do not think, in view of all the circumstances in the case, that it is excessive. Should appellant be thrown out of employment, 4 or for any legitimate reason he unable to pay the amount now fixed by the court, the court may, in the exercise of its sound judicial discretion, under section 1212, Rev. St. 1898, make such order in the premises as will be just and equitable to both parties. Whitmore v. Hardin, 3 Utah, 121, 1 Pac. 465.

The judgment of the district court is affirmed; costs to be taxed against appellant.

BASKIN, C. J., and BARTCH, J., concur!