289 P.2d 644 | Wyo. | 1955
This is an action for divorce brought by the plaintiff Steve A. Vrettas against the defendant Catherine T. Vrettas. The parties will be referred to herein as in the case below.
The parties were intermarried in a Greek Church
We have read over the testimony of the parties as to the causes of a divorce. After considering it, we have concluded that the judgment of the court in granting the plaintiff a divorce is sustained by substantial evidence and no good purpose would be subserved in reviewing it.
The second question before us is as to the division of .the property. In that connection we must bear in mind the rule stated in Lovejoy v. Lovejoy, 36 Wyo. 379, 256 P. 76, 79, where we stated:
“It is conceded that in making a division of property under the statute the trial court exercises a discretion. There are no hard and fast rules to control its action. The statute does not require an equal division. A just*423 and equitable division is as likely as not to be unequal. The decision of the trial court should not be disturbed, except on clear grounds, as that court is usually in a better position than the appellate court to judge of the respective merits and needs of the parties.”
That case has been cited and approved by us in a number of cases, including Garman v. Garman, 59 Wyo. 1, 136 P.2d 517.
Notwithstanding the rule so announced, the trial court awarded the defendant so little of the plaintiff’s property that we feel impelled to consider the subject. There is little dispute in the testimony that most of the time the parties were congenial. Defendant not only helped as cashier for a number of hours almost every day in plaintiff’s restaurant, but she also took care of the home, of the rooms and apartments owned by the plaintiff just as a servant and a laundry woman would. There is testimony in the record that defendant possibly married the plaintiff for convenience and that she sought to have plaintiff deed her his property or make a will in her favor, but that could not have come about wholly unexpectedly in view of the fact that plaintiff was twice the age of the defendant when he married her. Plaintiff’s brother did not like the defendant. The two separated when plaintiff was married, and did not speak to each other for eight or nine years. They were reconciled in 1955, and it is not altogether improbable that the cause of the final separation of plaintiff and defendant was the reconcilement of the two brothers.
Plaintiff conducted a restaurant in Green River, Wyoming, by the name of Star Cafe. It is the contention of the counsel for defendant that plaintiff made large profits in running the restaurant. But there is also evidence in the record that for two years prior to the commencement of this action, the restaurant
After considering the testimony in the case, we do not think that the defendant should be left almost penniless just because the plaintiff was granted a divorce. See 27 C.J.S. 1131. In determining how much property should be allowed, we think that we are on safer ground when we disregard most of the disputed and doubtful testimony and confine ourselves as nearly as possible to the consideration of matters supported by testimony that is undisputed or nearly so.
The defendant was allowed by the trial court a Pontiac automobile, which cost §3,600 but had been used for many months and its value at the time of the trial was probably not greater than §2,500. The plaintiff does not drive a car, and it was properly awarded to the defendant. The testimony indicates that it was given to defendant in the early part of 1954, so that it was in fact owned by the defendant, though we are not certain as to the legal title thereof.
The defendant was also awarded the furniture in the house. The real property in which it is situated was given to the plaintiff, who may accordingly eject her at any time. While counsel for the plaintiff estimate its value at $1,500, yet if she were compelled to move and store it, its value would be but small. It would be of more value to plaintiff by renting the house furnished.
The court also allowed her $5,000 but deducted therefrom the amounts already paid to the defendant by way of alimony in the sum of $750 and counsel
The plaintiff at the time of the marriage of the parties was the owner of lots 1, 2 and the east 15 feet of lot 3 in block 15 in the original town of Green River. The evidence indicates that it is valuable property and in good condition. Its value at the time of the marriage of the parties was $40,000. It contains (as of now) a residence, in which there is an apartment, and an apartment house with six apartments. The house was remodeled about 1950 at the cost of $5,000, which at first was borrowed from defendant’s father, but repaid, and evidently out of the earnings of plaintiff during the marriage. The apartment house also was entirely remodeled. The testimony indicates that most of the earnings therefrom were put back into the building, so that we are given to understand that at this time it is a first-class apartment building. The witness Dewey Jones, a real estate man, whose testimony we think we should accept as the most reliable, made an appraisal of the property shortly before the trial of this case. He took all the facts into consideration, including the income tax returns of the plaintiff. He found that the average income from the building for the past three years was about $5,500 per annum,
We think that the defendant should be awarded a judgment of five thousand dollars without deduction, the Pontiac car and the insurance policy which in fact belongs to her in any event. Instead of taking the furniture at the estimated value, permit her to choose to take that, or instead take cash in the sum of $1,500 in addition to the $5,000. She should also have counsel fee for prosecuting the appeal in the sum of $250 (the amount allowed in Davis v. Davis, 56 Wyo. 524, 111 P.2d 124). The defendant should not be charged with
The judgment of the trial court is accordingly modified as above-mentioned, and the court is directed to enter a decree to carry the foregoing modification in effect, and make such other orders in the case as may be necessary, not inconsistent with this opinion. As modified, the judgment is affirmed.
Affirmed as modified.