Willardson v. Willardson , 52 Utah 96 ( 1918 )

CORPMAN, J.

Plaintiff is the wife of the defendant. She commenced an action against the defendant for separate maintenance, under the provisions of chapter 4, Comp. Laws Utah 1907, alleging in her complaint that she “now without her fault lives separate and apart from her husband,” and prayed for separate maintenance for herself and a minor child of the marriage, attorney’s fees, and costs.

The answer denied the allegation, and affirmatively alleged that since the marriage in April, 1915, the defendant has provided a home at Mayfield, Sanpete County, Utah, for the plaintiff and defendant, and that until on or about the 22d day of September, 1916, he provided for and supplied the plaintiff at said home, when without his consent and against his will, and without any just cause or excuse for so doing, plaintiff deserted and abandoned the defendant and his said home, and now continues so to do. It is also alleged in the answer the willingness of defendant to provide a home and the necessaries of life on the condition that plaintiff will live with defendant, be a wife to him, and perform her obligations growing out of the marital relation.

The district court, after hearing the testimony adduced in behalf of the respective parties, made its findings of fact, conclusions of law, judgment, and decree against the defendant, awarding to the plaintiff, until the further order of the court, $50 per month for the support of herself and the minor child, the further sum of $344 expenses paid by plaintiff in sickness and for support since the separation, $100 attorney’s fee, and costs of suit. Defendant appeals.

Defendant contends the findings of fact and the judgment are not supported by the evidence, and that the judgment is against law.

The evidence, in brief, shows that the parties were married in Salt Lake City, in April, 1915, and that after the marriage they resided and made their common home at Mayfield, San-pete County, Utah, until September 20, 1916, when the plaintiff separated from the defendant, and since has continued to live separate and apart from him. The plaintiff, in part, testified concerning the alleged cruelty of the defendant as follows :

“I was sick three weeks after I was married, and he went to dances and ball games and picture shows and affairs, and he told me if I would just get out of bed and get some exercise I would be all right, there was nothing the matter with me; and, of course, when I was carrying my baby, and he ordered me out, and said I wasn’t in any worse condition than he was; and he came home drunk, and used abusive language toward me. * # # He would swear, and walk up and down the house and rave over things. * * * In my nervous condition I had terrible convulsions through it. * * * I couldn’t stand it; it was ruining my health,- the treatment I got; and he went to the canyon for a week, axid came back and bragged he had slept with a woman up there.”

The plaintiff’s evidence as to cruelty and misconduct of the defendant was in part corroborated by her mother. Substantial testimony was also offered and received by the district court bearing on the ability of the defendant to provide for the plaintiff separate maintenance for herself and the minor child.

The defendant, in his own behalf, gave testimony denying the cruelty testified to by plaintiff. He also expressed a willingness to provide the plaintiff with a home and provide for her if she would return to him and life with him as a wife.

So far as material here, section 1216 of Comp. Laws 1907 provides:

“Where a married woman, without her fault, now lives, or may hereafter live, separate and apart from her husband, the district court shall, on the application of the wife, allot, assign, set apart, and decree to her as alimony, the use of such part of her husband’s real and personal estate or earnings as the court may determine in its discretion. ’ ’

Section 1218 of the same chapter provides:

“In all actions brought pursuant to this chapter the court * * # may decree the payment of a fixed sum of money for the support of the wife and minor children, * * * and provide * * * the payment to be made at such times and in such manner as may be proper. * * * And the court shall have the power to change the allowance from time to time, according to circumstances, or may revoke such allowance altogether upon satisfactory proof of a voluntary and permanent reconciliation.”

In view of the record here, we are clearly of the opinion that the judgment and decree of the district court is amply sustained by the evidence and is in full compliance with our statute.

It is therefore ordered that tbe judgment of the district court be affirmed. Costs to respondent.

FRICK, C. J., and McCARTY, and THURMAN, JJ., concur.