In November, 1944, Reinhold Kosanke was convicted of the crime of taking indecent liberties with his niece, who was then thirteen years old. He was imprisoned in the state penitentiary, and, during the term of his confinement, his wife obtained a divorce from him on the ground that her husband was imprisoned in a state penal institution.
Prior to the intermarriage of the parties in this action, the husband owned separate property, consisting of a wheat farm of 720 acres, for which he paid approximately eleven thousand dollars. At the time of the trial of this cause, that *Page 532 property was of a value greatly in excess of the price paid for it by the husband, who also owned, as separate property, an undivided one-sixth interest in another tract of 480 acres of wheat land. Through the joint efforts of this marital community, and the proceeds of the separate property of the husband, the community assets, at the time of the trial, amounted to approximately seventy-eight thousand dollars.
The trial court awarded to the wife thirty-five hundred dollars in cash, seed wheat, and other property of the value of thirty thousand dollars, and awarded to the wife the home place, from which she should have all the rents, issues, and profits accruing therefrom until the youngest child of the parties attained the age of twenty-one years, at which time the property was to be sold and the proceeds divided, one third to the husband and two thirds to the wife. This provision of the order is subject to any mutual agreement the parties might make respecting the property; that is, the wife was awarded property of less value than thirty-five thousand dollars, and was required to support her three children. The husband was awarded property of about the same value.
Since entry of the interlocutory order, the wife delivered to the husband wheat from the farm, which sold for fourteen thousand dollars. In the main, the argument that the disposition of the property is inequitable, is addressed to the disposition of the 720-acre wheat farm, which was the separate property of the appellant.
For the reason that the remainder of the property was divided equally between the parties and no support or maintenance was ordered for the minor children, the court awarded to the wife possession, and profits from the operation, of the wheat farm until the youngest child attains his majority, which will be within ten or eleven years. During that time, this property may not be sold or encumbered by either of the parties, but, by mutual agreement, disposition may be made of the property. The wife was given use of appellant's share of the farm for about eleven years, in lieu of any maintenance or support of the minor children. *Page 533
While correctly observing that the doctrine of condonation is inapplicable, as the divorce was sought by respondent because of imprisonment of her husband in a state penal institution at the time she filed her complaint in the divorce action, and that respondent's motive in seeking a divorce is not material, the majority stresses the comment of the trial court respecting the desire of respondent for a divorce after she became infatuated with a man employed to work on the farm. Respondent, with her three children, went fishing twice, at which times this farm hand accompanied them. He also accompanied respondent and her sister twice on trips to Spokane, when respondent was called to that city by business or sickness.
The trial court exonerated respondent "from any inference even, of immoral conduct." Her association with the hired man has nothing to do with this case, and hardly constitutes the cruelty of which appellant, who, as a result of his perverted sexual desires, became a felon, may complain. The majority sees no reason why the three sons (ages thirteen, twelve, and eleven years) born of the union of respondent and appellant, "should not spend considerable time on the farm with their father, at least during school vacation periods." It is unconscionable to even permit these children, during the formative years of their lives, to associate with appellant. The fact, which the majority opinion emphasizes, that the oldest son loves his "dear daddy," an ideal which exists only in his imagination, may be "eloquent testimony of his love" for his father. I am convinced, as was the trial court, that they would be susceptible to the evil influence of that father. I agree that appellant should not be further punished because of his crime, but neither should he be rewarded and his wife penalized. He should be, however, quarantined, so far as his young sons are concerned. However poignant his agony, of which there is no evidence, because of denial of association with those lads, that pain should be discounted and held for naught in considering the welfare of the three sons, who may, if not subjected to contact with their father, become honored members of their community. *Page 534
The trial court stated that, as appellant had been a farmer all his life, ordinarily the court would grant the 720-acre farm to him, but that, under the circumstances, it would not be to the interest of appellant, nor would it be to the interest of the children, to have him back on the farm. The trial court was convinced that the unsavory moral delinquencies of appellant manifested a depravity of mind which was such that it would be to appellant's welfare and that of the children for appellant not to be even in that community.
Respondent has demonstrated that she is a capable woman and able to successfully operate the farm, and, as observed by the trial court, "of course the farm is a much better place for the children."
We have repeatedly held that a wide discretion is vested in the trial court in making disposition of the property of the parties to a divorce action, and that the trial court's determination will not be disturbed except for manifest abuse of discretion. Further, although most of the property is the separate property of the husband, it is the trial court's duty, regardless of that fact, to make such a division as to the court appears just and equitable, having regard to the merits of the respective parties and to the situation in which they are left by the divorce.Luithle v. Luithle, 23 Wn.2d 494, 161 P.2d 152.
In the case at bar, the husband received fourteen thousand dollars in cash, and he has other farm land to which he may devote his ability as a farmer. The wife is a practical farmer. She has three boys who are now of an age when they should be busy on the farm. If the mother and three boys move to the city, there to exist on the maintenance provided by the father, as directed by this court, the boys will be idle. They could be of assistance to their mother on the farm and could develop into prosperous farmers. By the time they arrive at their majority, and the farm property is divided between the father and mother, they will be competent to maintain themselves in a field in which they will be efficient.
The trial court was more concerned, as we should be, with the welfare of the three children than with the matter *Page 535 of provision for the support of the husband or wife. We are convinced, as argued by counsel for respondent, that, aware of the handicap at the very beginning of life of these children, by reason of the fact that their father is a felon and manifestly of depraved mind, the court made the division and awarded the wheat farm to the wife for the period of eleven years for the purpose of making these boys self-supporting, respectable citizens.
The interlocutory order should, in all things, be affirmed.
SIMPSON, SCHWELLENBACH, and JEFFERS, JJ., concur with MILLARD, J.
May 28, 1948. Petition for rehearing denied.