Shaw v. Shaw ( 1949 )

In my opinion my associates have failed to apply certain fundamental principles of law in the foregoing opinion. It is well settled that in ascertaining the facts where the evidence is in dispute we accept that portion of the evidence which is most favorable to the prevailing party. This is due to the fact that the trial judge is in a more favorable position to determine the facts from conflicting evidence than are we.

When and if we accept the evidence in the record most favorable to plaintiff, as I think we are obliged to do, then much of the feeling of prejudice against plaintiff and sympathy for defendant engendered by a reading of the majority opinion is dispelled.

Plaintiff's first husband died in 1915 leaving an estate then valued at about $50,000 but which was worth about $75,000 at the time she married defendant. There were also two children of her first marriage who are still living and who are entitled to two-thirds of the estate. The estate was never distributed. The two children, both being sons, in June 1927 signed a trust agreement permitting plaintiff to use and control the estate as a unit. The agreement provided that the income from the property should be divided equally between plaintiff and each of the two children and if plaintiff's share of the income was not sufficient to provide for her own support and maintenance that then she could use the portion of the income belonging to the children.

Plaintiff likewise inherited about $8,400 from her mother's estate in 1936 or 1937 and $1,000 from her step-father's estate in 1940. Her mother gave her about $10,000 before her death. Hence plaintiff had under her control during the existence of the marriage between plaintiff and defendant more than $94,000. Defendant at the time of the marriage had $300.00.

Plaintiff is now able to account for only about $45,000 still in her possession. Her two sons have had nothing as yet from the estate of their father. During the marriage between plaintiff and defendant, plaintiff not only bought and paid for cows with which to stock the Minnesota farm and the homestead later settled upon in Montana, but milked the cows, pitched manure, fed pigs and performed other manual farm labor. She paid one-half of the expenses for running the home for the 23 years of the marriage between plaintiff and defendant. She bought and paid for all of her own clothing through the years. The trap line which the majority opinion says defendant operated at Hobson and realized $2,800 from pelts sold was flatly denied by plaintiff who says that defendant caught only one mink. Plaintiff advanced money to defendant whenever he needed it. Some of the larger advances so shown by the record are the following: $3,500 for the purchase of cows and otherwise equipping the Minnesota farm; $450 for building a house on the Montana homestead; $400 for the purchase of cows placed on the homestead; $750 for a truck; $750 for a tractor; $750 for a trucking outfit; $1,400 for a loan to Ole Oschiness of Fairfield. Defendant received the benefit of all these advances and when the property was sold or the loan repaid defendant kept the proceeds. By this process defendant has increased the $300 which he had at the time of the marriage to about $40,000.00 which he now has. Plaintiff at all times was a dutiful wife and performed the obligations of her marriage to defendant.

The record shows that in 1943 defendant became acquainted with Georgia Morefield who then resided with her husband in Fairfield and worked in the telephone office. Plaintiff alleged and submitted proof that defendant became "enamored of and in love" with Mrs. Morefield. He paid so much attention to her that it provoked comment among the neighbors, many of whom spoke to plaintiff about it. This caused her humiliation and embarrassment. Defendant had her ride around with him in his car. He frequented bars in Fairfield with her and was seen with her in Great Falls. Plaintiff also, when a neighbor told her that defendant had gone to Choteau with her, followed him to Choteau and there saw him with her in a bar. This was in the early summer of 1944. The complaint was filed on August 18, 1945.

The conduct between defendant and Mrs. Morefield existed about nine months while they lived in Fairfield. Plaintiff and defendant sold out at Fairfield and left there in September 1944. Defendant's association with Mrs. Morefield caused plaintiff mental distress and destroyed her peace of mind and constituted cruelty within the meaning of section 5738, R.C.M. 1935.

There is evidence too that when defendant went to Los Angeles, California, Mrs. Morefield made her residence at Del Ray, California. My associates stress the fact that plaintiff went to Los Angeles and failed to look up the defendant. She testified that whenever he wrote to her, which was about once in two months, he gave a new address each time; that she inquired at each address given but was not able to find him. Some of the letters which she had written to him were not received but returned. She said, "I asked the policeman and I told him he was supposed to be some kind of police officer around there." She asked at the post office but was advised that they could not give the information.

Plaintiff testified that she read a letter written by Mrs. Morefield to Mr. Morefield in which she said: "I am in love with Mr. Shaw and I am going down to California to see if I can forget him." After she so testified an objection was made and sustained but no motion was made to strike the testimony from the record.

That defendant lost interest and regard for plaintiff is shown by the fact that in September 1944 he deserted her and insisted that they live separate and apart. He has since that time neglected to provide for plaintiff. He shoved her so hard in their garage at Fairfield in September 1944 as to cause her to fall to the floor and sustain serious bodily injuries and made no offer to help her to her feet and made no apology. He testified that this shoving was accidental but the solution of the fact issue was for the trial judge who has found in plaintiff's favor on this as well as on other issues. In my opinion there was ample evidence to sustain the charge of cruelty.

Likewise my associates have misconstrued plaintiff's complaint. She is not seeking a divorce on the grounds of desertion or wilful neglect. The district judge did not grant a divorce on those grounds.

The complaint is based solely upon statutory cruelty as defined by section 5738, R.C.M. 1935, and particularly the latter part dealing with the infliction of grievous mental suffering by a course of conduct and treatment of plaintiff persisted in for more than one year, which was calculated and which is alleged to have destroyed the peace of mind and happiness of plaintiff and to have defeated the legitimate objects of marriage.

After scrupulously following the language of the statute, the complaint then alleges: "That such acts and conduct on the part of the defendant consist in part of the following:" Here then follows the allegations with respect to defendant's association with other women, his desertion of plaintiff on September 3, 1944, his wilful neglect of her, and the other acts pointed out in the majority opinion. The desertion, wilful neglect and the other acts alleged were not pleaded as separate grounds of divorce but as acts constituting the objectionable course of conduct amounting to statutory cruelty. That they were appropriate for that purpose there can be no doubt. See note in 157 A.L.R. 631; and see 27 C.J.S., Divorce, sec. 29, p. 559, where failure to support a wife is said may constitute cruelty. In other words, the desertion and failure to support is but a continuation of the course of conduct amounting to cruelty.

The excellent statement of law from Pomeroy's Code Remedies contained in the majority opinion has no application to this case where the complaint contains but one ground of divorce and but one cause of action.

May the court's order with respect to the property rights be sustained?

I agree that this court has held that advances made by a wife to her husband are presumed to be a gift. The case of Bast v. Bast, 68 Mont. 69, 217 P. 345, is illustrative. In Bingham v. National Bank, 105 Mont. 159, 181, 72 P.2d 90, 113 A.L.R. 315, I pointed out in my dissenting opinion that where a husband advances money to his wife it is presumed to be a gift but that the weight of authority refused to apply that rule to advances made by the wife to the husband. But even though we treat advances by the wife to the husband as gifts, still the rule under the Bast case is that: "Contributions of money or property by a wife to her husband may be considered by the trial court in the light of circumstances affecting the amount of alimony to be awarded. The rule is laid down in 1 R.C.L. 931, as follows: ``Equity and good conscience require that the husband shall not profit by his own wrong in forcing his wife to divorce him, and that restitution shall be made to her of the property which she brought to him or that a suitable sum in lieu thereof shall be allowed out of his estate'."

A receivership is expressly authorized by statute in this state. Section 5772, R.C.M. 1935, reads: "The court or judge may require the husband to give reasonable security for providing maintenance or making any payments required under the provisions of this chapter, and may enforce the same by the appointment of a receiver, or by any other remedy applicable to the case."

I think the district court did not abuse its discretion in appointing a receiver, nor do I think the court erred in requiring the husband to make the payments which the decree requires. In effect the court is simply awarding to plaintiff that which in equity and good conscience already belongs to her.

I concede that under Emery v. Emery, 122 Mont. 201, 200 P.2d 251, if the husband manages to get property in his own name even though purchased with the wife's money, there is not much the court can do about it. I did not agree with the majority opinion in the Emery case. I think it is unsound in law and establishes a rule lacking in fairness and justice. I hesitate to concur in that part of the majority opinion in this case which follows the Emery case, even on the ground of stare decisis and without making an effort to have it now overruled. I think we should overrule it expressly at this time.

If this decree cannot stand then it follows that it is becoming as difficult in Montana to obtain a valid decree of divorce and an adjustment of property rights between husband and wife as it is to obtain a valid tax title.

I think the decree should be affirmed.