*1 (No. 20, 1928.) 4898. December N. Appellant, VOLLMER, P. ESTHER VOLLMER, A. v.
Respondent. Pac.
[273 1.] *2 Appellant Cross- Phillips Moore, C. J. L. and O. respondent. *3 Ailshie, Ailshie F. Jr.,
James F. James for Re- spondent. *4 brought
TAYLOR, J. Plaintiff action this divorce on desertion, alleged subsequent ground ithe have occurred May answered, denying 1921. Defendant desertion setting up “by an affirmative defense reason the condition of health on account of provide failure to for her furnish home, her a separate apart from him lived has since doing that her so autumn rendered neces- plaintiff becoming ill sary by reason some time about September, having to be taken month to a sani- alleging conditions thereafter tarium,” existent, and “that has been advised time she said and believes the fact *5 plaintiff be that has been in such a health state of as to it impracticable, unwise, unsafe, impossible make for and plaintiff and together.” defendant to live and reside De- allegations fendant further up allega- set nonsupport, and tions, upon based belief, plaintiff information and ability provide had for defendant and her minor child; plaintiff large income; had a estate, that his property, and retained, financial held, interests were and by concealed his mother First National and sister and the Bank of Lewiston, by and controlled and them for retained purpose covering up concealing and property and plaintiff estate of the defendant; from and that at all times the defendant provide had been and for was well able to minor and her prayed child. Defendant for her expenses “costs and including incurred in this action, rea- attorney’s sonable preparation fees for the and trial of the case and all services therein, rendered and for such costs expenses necessarily and as were in investigating incurred taking and deposition case procuring and witnesses; and be regular monthly awarded a provide a home and support and maintenance for herself and her child; prays minor and general for relief.” Defendant cross-complaint against filed also a the mother plaintiff, and sister of the and the First National Bank of Lewiston, setting up in alleged effect matters in her prayed defense, they affirmative brought in and required answer, “and that a may decree be entered against them payment them each of of such sum may adjudged sums be ordered and in favor of this cross-plaintiff defendant and maintenance, expenses costs, and for the disbursements entailed complaint and this action.” the service the mother motion, On and sister was quashed. and the First National Bank an- cross-complaint. At swered close of trial, prayer defendant to amend her motion divorce, ask for Judgment entered, denying denied. was either
Ill divorce, dismissing against defendant a the action granting a decree Bank, First National to the defendant sepai’ate more maintenance, will be the details of which fully appealed from those hereafter discussed. Plaintiff has portions grant- judgment denying divorce, him a *6 attorney’s ing by way maintenance, fees, relief and costs defendant. Appellant assigns thirty-three Counsel for re- errors. spondent assign- has motion of these made a to strike some ments Except specifically as hereinafter insufficient. ¡pointed whole, out, we deem assignments, as a sufficient present points main decision. of contention for assignments
In view of the conclusion of error reached, Nos. 1 and become immaterial.
Appellant’s assignments S, 6, Nos. of error 7 and 8 present questions sufficiency main of the evi dence to findings negativing desertion and find ing justification excuse and the absence defendant. plaintiff alleged
The defendant, desertion. admit- The ting her absence, alleged justification an excuse and therefor. court defendant, The found that the absence of the and her and refusal to live cohabit with were plaintiff, justifiable, did findings and not complained constitute desertion. These allegation “to plaintiff’s are the effect that of desertion ¡by untrue; defendant is . . . plain- . that time defendant, illness, ‘under from tiff’s instractions mother, brother, family,’ and members resided with parents d’Alene, her at Coeur Idaho,” “that and reason family of plaintiff’s Price, advice of members and Dr. and defendant was led to believe did believe that it was her unsafe to live and cohabit and unwise with de- feixdant, or children him from and after bear spring trial,” time of down to “that it was unwise for to reside or unsafe cohabit with by plaintiff any subsequently have children at time to the 1920, up time of the of this fall of to the trial cause.” contrary findings foregoing alleged are evi- It contended that the unsupported by the evidence. plain- other that members establishes, hand, dence on the plain- family urgently requested defendant to return tiff’s was husband; “that defendant tiff and to continue with her subsequently only company frequently not 1921, but that spring of to her return from California .... him; actually occupied with the same bed disin- her objection marital was principal her relations a residence living apartment clination to in an plaintiff’s mother in Lewiston.” wrote a appellant
Counsel for the fact that stress demanding return to letter that she to the con- live her refusal so do him, with failure and aat This was written stituted a wilful desertion. letter time, when, court found defendant evidence, from all the and unsafe justified in it believing that was ill-advised girl parties to and cohabit baby her live Argument plaintiff. named no other condition. It with the living, may manner of adopt reasonable husband that a *7 weight thereto, is without the wife must conform and that justification found for the light of the support or to conform. refusal urged frequently had plaintiff’s relatives that
Evidence plaintiff as continue with return to the to was, came where she she was husband, that, when he or her upon company, that, or the stress of in frequently his occupied bed, the same accommodations, living she meager and unwise for finding that it was unsafe refute does not by children the de- cohabit with or have or to reside her Argument that “her time of the trial. up fendant was disinclina- objection marital relations her principal in residence of apartment living in an tion to by objection made her Lewiston,” an theretofore in mother plaintiff, their by with evidence acquiesced in 1921, establish a March, cannot as late cohabitation begun initiated until have or been charged not desertion May 18, gave 1921, prior nor that thereto does fact reason, findings such her reason and overcome the as to justification refusing plaintiff. in to live with alleged support
These a con- evidence, references to finding, in trary serve but to the conflict evi- elucidate tending dence. thoroughly We have examined the evidence support findings justification and excuse of the defendant, and find it substantial to support and sufficient findings; applicable under well-established rules they to such situation, will not be disturbed.
Assignment 4,No. of error in finding “to the effect plaintiff pain suffered anguish no mental on account any desertion or part other conduct on the of defendant,” complaint is immaterial. The cannot be construed as an ac tion for divorce for extreme cruelty, the case was not tried that theory, support nor does the evidence action, finding such and the was immaterial.
Our conclusion as to finding of excuse justification, the matter if error, any, complained assign- renders of in 5, 11, 13, ments Nos. and 14, or given the reasons support assignments, immaterial -and unnecessary for discussion or decision. finding No. as to error No.
“to the no effect at time since marriage parties provided furnished or awith home live, except in which in the home of Yollmer, Mrs. John Idaho, Lewiston, and for about at three months in an apartment Angeles, California, at Los the said find supported by, ing contrary not but is to the evidence.” argument To this is contrary to evidence, counsel cite folios the record wherein evi found dence is to the effect that had rented an him and as apartment, supposedly to a house erected for apartment mother. rented time at a when *8 justified found living the court in not with being house plaintiff, completed and the built was not 1925, November, until about a month trial; before the 144 finding of No. slight, any, inaecuracy portion if immaterial, is rendered complained entirely
5 of, is justified defend- it is that court nugatory when considered void of time, evidence ant’s that and the conduct is except that live a home on condition with offer of plaintiff. assignment complained in finding
Error, any, in if assignment merit. material, without No. is and the not mate Assignments not error Nos. are gifts of income were rial. The fact sources that finding he had dispute donations, not does finding expense income,” and “sources of a “borne maintaining action has been carrying this on though the evidence, even plaintiff,” supported by is by relatives. money donated amply assignment 17, is finding complained in No. supported by evidence. finding
Assignment fact 18. The No. No. consisting property of a parties have common “that County, Idaho, in Nez Perce in Lewiston Orchards tract County, Montana,” grazing land Rosebud and a tract entirely evidence, but is a supported not is herein. decided immaterial issues ample sup No. 19. The evidence of, “to the 9, complained No. effect finding of fact port furnish defendant and able to their plaintiff is well keeping in manner in home and child a minor life,” to and manner of the ex station and mode his with not sum of determined, $300 but hereinafter tent establishes The evidence month. per forty-three age years, person an able-bodied competent that he is to earn graduate; sufficient Harvard income, a considerable which which, in addition to funds anticipate, executor and trustee under reasonable it is will, per him contribute $150 will enable mother’s Evidence support. previous of her wife’s to his month voluntary to her and of living, method
145 of finding necessity amply justifies of a per month, $300 herein allowed. the amount of the apprised in record the been
This court has main An order for parties. minor child of the death of the such the subject until revision revision, and tenance is a maintenance in affirmed an allowance of decree should be month. per $150 wife in of sum assign- unnecessary to discuss foregoing it renders ment No. 20. plain- that the apprised
This the record court also the time since portion tiff a of paid, has considerable order month an per $150 under judgment, the sum mainte- amount as of the trial court allowance of that for 97, Vollmer, 46 pending (Vollmer Ida. appeal. nance v. 677.) is not made consti- 266 This latter statement Pac. supporting plaintiff’s ability pay, tuting or evidence finding, elucidating provi- purpose but for the monthly payment hereinafter as to allow- sion made required by judgment. ance 21,
Assignment error No. in of fact No. in of the discussed view determination need not be defendant, except to be allowed herein of amount dependent for maintenance say that an allowance marriage relation, pro and that continuation of the a nullity judgment are a which finding and of the visions beyond to continue to the fix an allowance wife purport marriage parties. possible a future termination 22No. is well of error founded for showing necessity no There is or reasons. several home, building such for the or propriety of a house or needs or kind of to be as to the needed proof (Hand Judgments and certain. must be definite v. built. 536.) County, 40 Ida. There is Pac. Falls Twin required, purpose set, fixed, to which the definite no in necessity be confined case of such defendant must justify an The evidence does not payment. defendant, be used in
$10,000 pro “to herself in man- viding home minor child such ner as may deem to to their best interest and wel- ” fare. nothing There is justify taking in the evidence to lump such money delivering sum of from the it over to A management the defendant. has husband separate control of the community property and property, nothing herein in the law of this or facts case justifies allowing court invest- wife sums ment house, purposes her whim fancy at *10 may “that she deem for their best interests and welfare.” assignment In support of No. in the of error finding attorney’s $5,000' and allowance of as a reasonable fee, assigns appellant First, but two reasons: that the jurisdiction “court is amount, to award or without said attorney amount as past an “that services”; second, fee said is unreasonably showing large, amount evidence the plaintiff entirely that or is substantial property without income.” juris This court has heretofore determined the attorney’s diction of a trial court allow to fees in such case at the (Taylor Tay trial close of the of a divorce action. v. lor, 211.) 445, 196 The Ida. Pac. fact complaint prayer was unsuccessful in a to amend her to divorce, ask for or only separate that she secured mainte nance, from jurisdiction does not detract the of the court might allow counsel fees which have it had the allo.wed plaintiff been successful in his divorce action. The fact plaintiff action, did not succeed in the divorce does not deprive jurisdiction court the of to allow the defendant attorney’s fees. following
The is opinion the writer’s and conclu sion assignment the second of error in the allowance $5,000. of the assigned, The “that reason said amount is unreasonably showing large, evidence that plaintiff the is entirely property income,” without substantial or is not a assign valid reason for its disallowance. This is neither an insufficiency ment of the evidence to sustain the of gauged proper the value services as the measures value, present nor or raise the insufficiency sufficient finding. of the evidence to the The plain fact that pay attorney’s tiff is may fee, able to not be no excuse Plain- value thereof. against judgment defense from apparently, from own income tiff has whether his relatives, his able conduct side donations of been case, and services effort expenditure caused the and has disputed. defendant, is not value of which on behalf ability plaintiff Y/liile, of a divorce, in an action defend wife to attorney’s permit fees to pay husband to requirement may action, consideration a condition action payment as attorney’s fees judg- right it, maintain the ultimate of his to continue earned, de- attorney’s cannot as fees ment to the value discharge pend upon ability husband of the attorney’s fee judgment. such The reasonableness of prop- possession by dependent upon is not merit, based erty assignment is or income. This without assigned. on the only reason concurring
However, opinion it is and decision of the specification sufficient majority court present question, that, with allowances theretofore made, the be reduced. should excessive, Tay holding Taylor v. No. 24. jurisdiction make an award lor, supra, court has upon final this, de of costs incurred in an action such *11 assigned termination, No. disposes in of the error purposes. allowing for such $305 the defendant points 33. and authorities Under No. appellant sep to the effect that 5,No. cites authorities in con maintenance be awarded the absence of arate cannot divorce, authorizing therefore a court ditions that point awarding separate maintenance. is no in This erred error, assignments in unless it in the made of be where jurisdiction going of the court assignments to allow assignment costs, general of error attorney’s fees separate allowing maintenance. This judgment equity that of have inherent has determined “courts court separate support maintenance for award jurisdiction any independent minor of action wife children of the provision.” independent statutory any divorce and of (Simonton Simonton, 255, 262, v. Ida. 193 Pac. 388.) assignments
We have all error, examined the other disposed by deem them is here what decided. We have reached the conclusion that the evidence suffi- is support cient findings modified; the material as herein findings that the forth; be modified set that as hereinbefore judgment striking be by provi- modified therefrom the requiring by sion pay $10,000, used “be home,” in acquiring purpose, other any or for $15,000 accordingly that the item be reduced $2,000 attorney’s fees; the allowance per $300 be per month; month reduced to $150 judgment satisfied, monthly be deemed as to the allowance decreed, $150 equal therein an amount amount to the any payments made under order provision pending appeal; maintenance that such payment alimony required monthly shall be after possible dissolution marriage, therefrom; of the be stricken modified, that, judgment hereby so and is attorney’s affirmed. Motion of counsel for additional fees court, in this In previous denied. view the made appeal, the trial court for on costs no costs are awarded. J.,D. concurs.
Hartson, Lee, Wm. J. —I concur in E. C. the conclusions reached. Eeed, J., except concurs, opinion D. that he attorney’s separate $3,000, fee of an and a maintenance of per month, $200 should be allowed.
BUDGE, portion dissent from that opinion J. I denying appellant my of divorce. To decree mind there is evidence, ample conflict in no substantial and there is charge evidence to desertion. Otherwise, I *12 concur conclusions reached. rehearing
Petition for denied.