The plaintiff brought this action against the defendant for a divorce on three statutory grounds, nonsupport, desertion, and cruelty. The complaint states a cause of action as to each. Its sufficiency is not challenged. Upon it the plaintiff prayed judgment for a divorce, the custody of
Corpus Juris-Cyc. References:
[1] Divorce 19 C.J. p. 145 n. 62; p. 346 n. 43.
[2] Divorce 19 C.J. p. 267 n. 82; p. 357 n. 34. *Page 358 two minor children, three and two years of age, $50 a month alimony for the support of herself and of the minor children, $75 attorney's fee, and costs. The defendant, answering, admitted the marriage, the residence of the parties, the birth of the children, and that he had not supplied the plaintiff "with any of the necessaries of life," but denied his failure to do so was "willful or neglectful," and alleged that the failure "was pursuant to an agreement between the plaintiff and the defendant, made on or about November 1, 1925," the time alleged in the complaint he had deserted the plaintiff and the children. He also denied that the had "wilfully and without cause deserted and abandoned the plaintiff." He further alleged that on November 1, 1925, he and the plaintiff "had a quarrel, and thereupon mutually agreed to separate and to live separate and apart from each other"; that in pursuance of the agreement the children were taken into his custody and by him placed with his parents, who cared for them; and that he contributed to the support of the children, but had not supported plaintiff, or given her anything, since the separation. He denied the alleged cruelty.
The case was tried to the court. The plaintiff, corroborated by several witnesses, gave evidence to support each of the grounds stated in the complaint for divorce. The defendant testified in his own behalf, and called two other witnesses, but whose testimony related to mere insignificant matters, and not to any of the material issues. In his testimony he admitted that he was earning $96 a month, that he had not given his wife anything, and that when he left the plaintiff he shut off all credit at stores where theretofore supplies had been purchased by the plaintiff for household purposes and expenses, claimed he had contributed something towards the support of the children, admitted some of the alleged acts of cruelty, and denied others. The court made findings merely in this language:
"That the defendant did not for more than one year prior to the filing of this action, or at any time, willfully, or at all, neglect to *Page 359 provide for plaintiff the common necessaries of life; that the defendant has not, for more than one year last past, or at any time, wilfully and without cause, or at all, deserted and abandoned the plaintiff, and that the separation of said parties was pursuant to agreement and by the consent of the plaintiff; that the defendant did not, for more than two years prior to November 1, 1925, or at any time, or at all, treat the plaintiff in a cruel and inhuman manner, and that the averments of cruelty * * * were and are not supported by the evidence."
Upon these findings, which are mere conclusions, the court rendered judgment dismissing the complaint, and required each party to pay his or her costs incurred, except $13.20 incurred by the plaintiff, which the defendant had theretofore paid, and refused to allow the plaintiff anything for attorney's fee, or for her support and maintenance, or that of the children. The plaintiff appeals, claiming that the findings are against the evidence and the judgment against law.
We have examined the record, and by the manifest weight of the evidence — indeed, there is not much conflict concerning it — it is shown that there was no agreement or mutual understanding of the parties to live separate and 1 apart, as alleged in the defendant's answer, or otherwise, or as to the custody of the children; that the defendant, an able-bodied and healthy young man, capable of earning $100 a month or more, without cause, willfully abandoned and deserted his wife and children, going to California, and later returning to Utah and leaving them without a dollar and without any means of support whatever, shut off all credit at the stores where theretofore they had traded and obtained groceries and household necessaries. The plaintiff, about two weeks thereafter, finding herself in such distress and in a helpless condition, requested the mother of the defendant to take the children until the plaintiff could get employment of some sort. The defendant's mother, because of her age, did not feel able to care for both children, but took one of them. The other *Page 360 was left with the plaintiff's sister-in-law. The plaintiff then sought and obtained employment in a store.
The parents of the defendant had no knowledge that defendant had deserted the plaintiff, or that he had gone to California, until the plaintiff informed them. The defendant did not, after he went to California, nor after he returned to Utah, give or send the plaintiff anything. The plaintiff's sister breaking her leg in an accident, and for that reason unable to care for the child left with her, both children, at plaintiff's request, were left with the parents of the defendant. The evidence clearly shows that the defendant, without cause, deserted the plaintiff as in the complaint alleged. The evidence also clearly shows that the defendant was guilty of some of the alleged cruelty. The evidence is just as clear that the defendant willfully failed and refused to support the plaintiff. There is no substantial dispute as to that. The claim made by the defendant that he was relieved from his duty and obligation in such respect because of his alleged agreement that the parties were to live separate and apart has no basis either in fact or in law.
The plaintiff at the time of the trial was, and for some time prior thereto had been, working at the Golden Rule store in Ogden, where the parties lived, earning $55 a month. She had no other means of support. As testified to by her, it was her desire, with her own earnings and with the defendant's help, to get a small apartment, where she could be with her children mornings and evenings, and during the daytime, while at the store, have an attendant, if necessary, to look after them. Apparently the parents of the defendant are not objecting to returning the children to the plaintiff, and took them only temporarily to help the plaintiff. We think the merits of the case in every particular are with the plaintiff and against the defendant. Indeed, there is not much to commend the defendant's course of conduct, leaving the plaintiff and refusing to support her. *Page 361
The findings and judgment of the court below are therefore disapproved and vacated, and the cause remanded to the district court, with directions to make findings responsive to the complaint and on the grounds therein stated, and 2 grant a decree of divorce as prayed in the complaint; award the custody of the children to the plaintiff, and require the defendant, from the commencement of the action, and until the further order of the court, to pay to the plaintiff $50 a month for her support and maintenance and that of the children, and to require the defendant to pay the plaintiff, as and for counsel fees, $75 and all costs incurred by plaintiff in the lower court and in this court. Such is the order.
THURMAN, C.J., and HANSEN, J., concur.