Schirmer v. Schirmer

Mount, J.

This action was brought by the plaintiff to obtain a divorce from her husband on the grounds of cruelty and infidelity. The plaintiff prayed for a division of the property and the custody of the three minor children. The defendant, in answer to' the complaint, denied the allegations of cruelty and infidelity alleged in the complaint, and filed a cross-complaint seeking a divorce from his wife upon alleged grounds of cruelty. Upon these issues, the case was tried to the court and resulted in findings to the effect that each of the parties had been guilty of cruel and inhuman treatment toward the other such as to render it impossible for the parties to live longer together as husband and wife; and concluded that each was entitled to an absolute decree of divorce from the other. The custody of the children was awarded to the plaintiff until the further order of the court. The plaintiff was awarded all of the real estate belonging to the parties, with the exception of one piece which stood in the name of the defendant’s brother. The defendant was awarded the remainder of the property, consisting of mortgages, cash on hand, and stocks. The defendant was required to pay to the plaintiff $30 per month until the further order of the court for the support and care of the children. The defendant was also ordered to pay $250 for attorney’s fees. He was further ordered to pay to the plaintiff certain taxes, assessments, and water rent due upon the premises decreed to the plaintiff.

The plaintiff has appealed from the decree so rendered, contending, first, that the evidence was insufficient upon which to base a finding that the defendant was entitled to a decree of divorce.

It is apparently conceded that a divorce was properly granted to the appellant, because no question is made against the finding that the respondent had been guilty of cruelty toward his wife. If a decree of divorce is granted in favor of one of the spouses, both are thereby necessarily divorced. If we should conclude, therefore, that the court erroneously declared the respondent guilty of cruelty, the result would not for that reason necessarily be changed. The only result which would follow is that no blame would attach to the appellant. In short, the appellant’s contention upon this question is based upon sentiment rather than substance. In view of this conclusion, the result will not be changed even if we should conclude that the appellant was blameless. We shall not discuss the case further than to say that we have read the evidence with some care and find that the parties had not lived together as man and wife for a period of six years prior to the date the action was brought; that, during this time, they had mistreated each other and accused each other violently of infidelity; that the respondent was the aggressor upon most occasions, and, if more blame is to be attached to one than to the other, it should be placed upon the respondent. It is apparent that the parties cannot live together as husband and wife, and that a divorce has been properly granted.

It is next argued by the appellant that there was an unequal and unjust division of the property. The evidence upon the value of the property is not definite or certain. The appellant claims that the value of the property awarded to the defendant was largely in excess of that awarded to her. It may be true that the property awarded to the defendant was somewhat greater than that awarded to the plaintiff. The property awarded to the defendant, with the exception of one piece of land standing in the name of his brother, was all personal property, some of which consisted of stocks in corporations, the value of which was and is speculative and uncertain. There were two mortgages of about the value of $8,000. There was some money in the bank, the amount of which is not clearly shown by the evidence. The defendant was in debt in about the sum of $1,500. He was required to pay to the plaintiff $30 per month for the care and support of the children. He was also required to pay the attorney’s fees in the case, and the costs; and was required to make other small payments. A wide discretion is given to the trial court by § 989 of Rem. & Bal. Code (P. C. 159 § 15) in the distribution of the community funds. We are not convinced from the evidence, nor by the argument of counsel, that the court abused its discretion in the division of the property.

The appellant also argues that the trial court erred in allowing but $30 per month for the maintenance of the children. There are three minor children. The oldest at the time of the trial was a boy sixteen years of age; the next was a boy of about the age of twelve, and the youngest was a girl of about the age of six. It was shown upon the trial that the older boy was industrious, and had saved out of his owii earnings at the time of the trial $285. The other two children, so far as the evidence shows, were entirely dependent upon their parents. It may be that in a short time $30 per month will not be sufficient to properly care for these children. But at this time there is nothing in the record to indicate that $30 per month awarded to the plaintiff will not be sufficient. We find nothing in the case which justifies a reversal, or even a modification of the decree at this time.

In view of the fact that the appellant appears to have no ready money, and there is not a ready sale for the real estate, or any part thereof, at this time, and in view of the further fact that the defendant was awarded all of the personal property and available money on hand, we think it is just that he should be required to pay the costs of this appeal, exclusive of attorney’s or counsel fees.

We find no error in the record, and the decree is therefore affirmed.

Main, J., concurs.

Ellis, J., concurs in the result.