Huston v. Huston , 56 N.M. 203 ( 1952 )

SADLER, Justice.

This is an appeal by the wife, the plaintiff below, from a decree of divorce in which property rights of the parties were settled and an award of alimony in favor of the wife was made. The husband applied for and was granted a cross-appeal. It may seem strange that the wife who' sued for and was granted a divorce should feel aggrieved by the decree awarding it and equally so that the husband as an appellee should complain of the decree sufficiently in his favor to be placed in the position of defending it before us as an appellee on his wife’s appeal. This seemingly anomalous situation is clarified when it is noted that each party accepts the decree only' in so far as it is favorable and assails it to the extent that it is unfavorable.

The parties had been married about three and one-half years at the time suit for divorce was filed by the wife and nearly four years when the decree of divorce actually was entered. It represented the third marriage for each party, as to each the prior marriages being dissolved by divorce. There were no children born of this marriage. The divorce was granted on the ground of cruelty toward the wife by the husband. He does not challenge the decree in so far as it awards a divorce although he contested plaintiff’s right thereto and himself by cross-bill sought a divorce on the ground of incompatibility.

Thus it is that the -real controversy between the parties stems, not from any dissatisfaction with the award made under the primary relief sought in the complaint filed, but rather from the action of the court in awarding alimony and in the settlement made of property rights. It is well to state at the outset that there was no community property. However, about seven and one-half months after the marriage, the defendant’s father made him and his wife a gift by deed of a residence property in Hobbsi New Mexico, consisting of a house and four lots on which the house stands. It was valued at $9,000. The son and his wife took title thereto as cotenants. The defendant’s father having died intestate in the meantime, the son as his sole heir inherited $23,000 in cash as well as some cattle which he sold 'for $4,000, making a total of $27,-000 received by defendant from his father’s estate.

Soon after the marriage of the parties, the defendant became a chronic alcoholic and by reason thereof he was irresponsible and helpless in the transaction of business. Largely as a result of this condition, he began a course of wild and reckless spending after coming into possession of the $27,000 inherited from his father’s estate. However, apparently realizing his infirmity when drinking excessively, soon after receiving his inheritance he delivered $6,000 thereof to his wife, the plaintiff, and also executed and delivered to her a quitclaim deed to the residence property in Hobbs.

It was not the intention of either party to the deed that it should convey to the wife the husband’s beneficial interest in the property conveyed, or to alter the actual ownership of the undivided interest of each theretofore existing in the property. On the contrary, the parties well understood that the purpose of the deed was to protect both of them in the continued ownership of the property as a home against the hazards of . defendant’s reckless expenditures when drinking, thus carrying out the true reason of the father for naming the son and wife as cotenants in the father’s deed of gift.

The excessive drinking of defendant and his consequent cruelty to her kept plaintiff under a constant strain and tension, resulting in such an impairment of her health that she was no longer able to work. She continued to occupy the home in Hobbs. There were three children born of the first marriage entered into by plaintiff. This marriage took place in 1926 and the second in 1941. There were no children born of either the plaintiffs second marriage or, as already noted, of the third to defendant. Nor were there any children born o'f defendent’s two prior marriages.

Up to the time of trial, the plaintiff had expended all of the $6,000 which the defendant had turned over to her from his father’s estate, except $2,034.57 still in her possession, upon living expenses of the parties, repairs on the house they occupied and the purchase of furniture and fixtures for the home. Accordingly, the trial court found and concluded that, by reason of the condition of plaintiff’s health and until the further order of the court, the home of the parties with the furniture and fixtures therein should be set over to the exclusive use and benefit of the plaintiff; also; that as permanent alimony she should be awarded a full one-half of that portion of the $6,000 already mentioned as having been delivered to her by defendant from his father’s estate which she had invested in improvements and repairs as well as in the purchase of furniture and fixtures; and, also, until further ordered, that she should have as additional alimony the sum of $100 per month payable on the 15th day of each month beginning June 15,' 1950, plus all rentals from the rented portion of the residence property mentioned which was producing $60 per month at time of trial, as shown by the testimony.

The trial court further found and concluded that, as security for payment of the $100 per month alimony mentioned, the plaintiff should be authorized to retain the $2,034.57 remaining with her from the $6,000 turned over to her by defendant, as aforesaid, and to apply $100 of same to the satisfaction of any monthly installment of alimony as to which the defendant defaulted, making due account of same to the court.

There was also a Studebaker automobile belonging to defendant which he had taken from plaintiff’s possession by an action in replevin and the court found it should be awarded to him and his right to possession confirmed. And fearing that defendant’s drinking habits, in view of joint ownership of the property, might result in him visiting the home to her discomfiture, the court concluded he should be enjoined from visiting the premises and annoying her. The court also' found and concluded the the plaintiff was entitled to an award of $350 attorney’s fees which she was authorized to* pay from the $2,034.57 of separate funds retained by her.

A decree was entered substantially in conformity with the findings, undisputed facts and conclusions recited hereinabove. Specifically, the plaintiff 'was granted an absolute divorce from defendant. The parties were decreed to own as cotenants, each an undivided one-half interest in Lots 1, 2, 3 and 4, Block 23, all Hobbs Addition to the City of Hobbs, Lea County, New Mexico, being the residence property above mentioned, known also as 206 North 4th Street in the city of Hobbs, with all improvements thereon and the defendant’s one-half interest was set aside, until further order of the court, to the exclusive use and benefit of plaintiff. The alimony award of $100.00 per month plus rentals mentioned, and attorney’s fées in sum of $350 all were decreed in plaintiff’s favor with authority in her to retain the sum already mentioned of $2,034.57 of defendant’s separate property and to apply it as authorized to the alimony and attorney’s fees allowed, together with costs and disbursements of the action. As stated above, the plaintiff appealed and the defendant cross-appealed from the decree so entered.

The plaintiff’s grievance against the decree rests primarily on the trial court’s failure to find and hold that the defendant made a gift of the $6,000 turned over to her from his father’s estate and of his undivided one-half interest in the real estate and improvements when he made a quitclaim deed to her of such interest. Whether he did so in either case is a question of fact and we have no disposition to disturb the trial court’s findings on the issue.

Within a year following the marriage, the defendant began to drink heavily and upon coming into his father’s estate began to spend and dissipate it with shameful prodigality and lavishness. Both as to the $6,000 turned over to her by defendant and in the case of the quitclaim deed he made in her favor, the court was fully justified in inferring that he was simply taking advantage of periods of sobriety to place that much cash and the undivided one-half interest in real estate beyond his own power to throw or give it away while on a drunken spree. Any ■ argument on the question whether defendant knew what he was doing when he gave the deed is beside the point and deals with a false issue. Nobody, not even the defendant, ever questioned that he was fully competent to contract when he made the deed as well as when he turned over the $6,000,00 to plaintiff.

To contend the evidence does not suffice to uphold the trial court’s finding on the crucial issue of whether the deed was in-' tended as an outright gift, or merely to protect the parties, is to ignore material portions of it. Note this, testimony by defendant, to-wit:

“Q. Just why were you going to place it in her name? A. So I could not mortgage or sell or dispose of it and I would always have a home.

“Q. Was she concerned you might dispose of your interest in the property? A. Yes, sir.”

Also, this from defendant:

“Q. Did you ever tell your wife that you were giving her the home outright, that you would not have any more interest in it? A. No, sir.

“Q. Did you discuss that with her, you would still have an interest in it? A. Yes, sir, that I would still have an interest.

“Q. Did you discuss the general purpose of why .you were giving that deed to her? A. Yes, sir, just like I said, so I could not mortgage or dispose of it.

“Q. And you talked to her about that? A. Yes, sir.”

A friend of the family living near Hobbs at whose home the plaintiff visited about a year before the trial while trouble between her and the defendant was taking place, one H. C. Wiley, gave testimony corroborative of defendant’s statement of the reason for making, the conveyance. He testified:

“Q. Relate in your own words generally what she said out there at that time? A. Well, she came out there one morning, I imagined between nine and ten o’clock, and "she said she was still having trouble; I called her by name, I said ‘Well, Lavera, what is it’, and she said, ‘Well, D. N. is gone again’, and I said, ‘Lavera, what are you going to do, why do you not quit him’, and she said, ‘Sam, I am not about to' quit him,’. She said, ‘I have it all to gain and nothing to lose’. I said, ‘Well, I guess that is a good way to look at it’.

“Q. Was there anything said about title to the home down in Hobbs? A. Well, not as I can recall, only Lavera said, ‘Sam, I think if I can, I should get D. N. to sign me over his part of the home if anything comes up in the way of a mortgage where it could be mortgaged and I would lose my part of it’, and I told her this, ‘Lavera, that might be a good way to look at it’. I do- not know anything about the domestic affairs. As far as I recall that was all that was mentioned.

“Q. But she said out there she was going to try to get him to give her a deed to the property? A. Well, that is what she said.'

“Q. And she was afraid he might sell his interest? A. That is what she said.”

To be sure, there is some testimony tending to support the plaintiff’s theory of a gift to counteract the testimony adduced by the defendant supporting the findings. That the testimony is conflicting is admitted. But on a challenge like this all conflicts in the testimony are to be resolved in support of the findings and the testimony as a whole is to be viewed in the aspect most favorable to them. Hedrick v. Jagger, 46 N.M. 379, 129 P.2d 340; Keil v. Wilson, 47 N.M. 43, 133 P.2d 705, 148 A.L.R. 397. And where the evidence supports the decree, although conflicting, it will not he disturbed on appeal. Grissom v. Grissom, 25 N.M. 518, 185 P. 64. There can be no doubt but that the findings in this case support the decree. Furthermore, a careful review shows evidence supporting them meets every requirement of the rule as to sufficiency to establish defendant as the owner of an undivided one-half interest in the real estate in question. Cf. Walters v. Walters, 26 N.M. 22, 188 P. 1105; Evans v. Evans, 44 N.M. 223, 101 P.2d 179.

On his cross-appeal the defendant complains of the award of $100 per month alimony and of the injunction which restrains him from going on the premises occupied by plaintiff and annoying her. We see no abuse of discretion in either case. The court merely allows the alimony “until further ordered.” Upon a showing of hardship incident to any substantial change in financial condition on defendant’s part, no doubt the trial court will make such change in this award as altered conditions justify, on proper application. It may seem somewhat harsh to deny by injunctive order the right in defendant to visit premises in which he is held to own an undivided one-half interest. But here, too, the continuing jurisdiction retained by the court incident to the alimony award may likewise be invoked to ameliorate any hardship in the injunction against defendant, upon proper showing.

Finding no error, the decree appealed from will be affirmed.

It is so ordered.

McGHEE and COORS, JJ., concur. LUJAN, C. J., and COMPTON, J., dissenting.