Sills v. Sills , 118 Wash. 94 ( 1921 )

Hovey, J.

— By the judgment of the trial court, the respondent was granted a decree of divorce and an award of certain property out of the separate property of the appellant. Respondent makes no appearance in this court.

The parties intermarried In this state on March 24, 1920, and the action for the divorce was commenced the following October. The respondent is the mother of six children, the eldest being seventeen years of age and the youngest four, all by her former marriage. She has been twice divorced, both times from the same husband. The appellant is fifty-seven years of age and has been married twice before, being divorced from his first wife, and bis marriage to bis second wife being annulled. At tbe time of ber marriage, tbe respondent was possessed of real property of tbe value of about $7,500, and the appellant was possessed of considerable property, tbe value of tbe same being in dispute, tbe testimony of tbe respondent showing it to be worth about $25,000, and that of tbe appellant that it is worth about $14,000. As against this, tbe appellant is indebted in about tbe sum of $5,000.

Tbe appellant assigns two errors:.

First. That tbe court erred in finding sufficient grounds for tbe divorce.

Second. That tbe court abused its discretion in awarding any of tbe said property to tbe respondent.

Tbe evidence shows that tbe appellant is a man accustomed to business and deals principally in real estate. Tbe parties were well acquainted with each other for several months prior to their marriage, and during all tbe time the family of respondent resided with ber and appellant was well informed as to tbe obligations which be was assuming. As it often happens in cases where people of mature years marry where one of them has a family of young children, a good deal of irritation and friction developed. Tbe evidence shows that tbe respondent was a good housekeeper and provided a comfortable home, but that appellant never fully took up bis duties as a husband, but spent a large portion of his time in rooms which be maintained in an apartment bouse belonging to himself and bis former wife. This apartment bouse seems to have been bandied by both tbe appellant and bis former wife, and tbe latter maintained ber residence there also, using a common Idtcben with tbe appellant, and appellant kept most of bis clothing in the rooms in tbe apartment bouse. He was more or less in tbe company of bis former wife, and while the lower court found there was no evidence showing that their relations were of an improper nature, it is admitted that this conduct was in opposition to the wishes of his present wife and would naturally cause her a great deal of humiliation. The wife testifies that, in the month of August, the appellant awoke her in the middle of the night, treated her with some physical violence, and applied to her some very vile names. The husband denies part of these allegations, but the evidence shows that the parties separated after this, and the lower court found, from certain corroborative evidence, that the wife’s story was to be believed, and we think he was justified in so finding. The record contains evidence as to many more matters, but we will not further relate them, as we believe that the judgment of the lower court in granting the divorce is fully justified.

Prior to her marriage, the respondent had contracted to purchase certain property, known as the “Delta property,” from the appellant and another man who was a joint owner. The purchase price was $2,600, and respondent paid on account of the same about $600. Afterward appellant purchased the interest of his coowner, and in the decree the court awarded the entire property to the respondent. About the time of their marriage, respondent borrowed from appellant the sum of $750, and gave her note therefor, this money being used by the respondent in a property settlement with her former husband. At the time of the trial, the appellant had pledged this note as security for a loan, and in the decree the court ordered the cancellation of this note, and in case that could not be secured, the decree provides that the respondent shall have judgment against the appellant for the amount of the note. We think that, under the circumstances of the ease, the award made to respondent was too large.

In onr opinion, the respondent should pay the sum represented by this note, and the decree will be modified to require her so to do, and the provision for the money judgment in favor of respondent will be stricken. In all other respects the decree will be affirmed. Neither party to recover costs.

Parker, C. «I., Holcomb, and Mackintosh, JJ., concur.