(concurring and dissenting).
I agree with Mr. Justice CROCKETT that the trial court properly awarded a decree of divorce to plaintiff. I likewise agree that the decree of the trial court looked at with all proper indulgence cannot be sustained. I am of the opinion that the decree works such a manifest injustice and inequity as to evidence a clear abuse of discretion.
However, I am unable to agree that the minor revision of the decree as provided for in the majority opinion has cured the abuse of discretion manifest in the original decree.
The judgment entered by the trial court evidences more sentiment than equity; in fact, I see considerable vindictiveness in the decree. The plaintiff at the time of the marriage was six years defendant’s senior— she was 30, he 24. She had never had a steady job in her life. The record would indicate and she testifies that she managed defendant’s income and helped to accumulate the property which his work paid for.
In fact, defendant should be most grateful that she did assist him in establishing a substantial estate only to have it all taken plus $5,000 additional and bestowed on her.
Had he died, plaintiff would have ■ received, as his sole heir, $5,000 less than was awarded her. She was permitted to help in determining what award should be made. At the close of the hearing the trial court said to counsel:
“The Court: She may have all property except the check in evidence, and $5,000.00 payable $50.00 a month for one hundred payments for the next one hundred months, or she may choose between the two homes and have $10,-000.00 at a hundred dollars a month, payable in one hundred installments. Please make a choice.
“Mr. Gustin: How is the $10,000.00 payable ?
“The Court: At a hundred dollars a month for one hundred consecutive months. By that I am impressed with ■ the fact that' she is a better manager than he is.
*86“Mr. Duncan: She has the choice between all of the property except this check in evidence, and five thousand dollars.
“The Court: That’s right. That is one choice.
“Mr. Duncan: Or she has a choice between the two homes and ten thousand dollars.
“The Court: Payable at one hundred dollars a month for one hundred consecutive months.
“Mr. Duncan: May I have just a moment?” (A short recess was taken.)
“Mr. Duncan: I am advised that she would rather take all the property and $5,000.00 at $50.00 a month.
“The Court: All right * * *.”
The check in evidence for $545.90 referred to by the court didn’t go to defendant. That went to pay court costs and attorneys’ fees.
The rules oft referred to by this court to be applied in determining the proper settlement of the property rights and the award of alimony seem to have been disregarded in this case. We have never before implied that the cruelty of a husband who falls in love with another woman, and which is of short duration, justifies stripping him of all that has been accumulated by his efforts over a period of 15 years and giving her a bonus of $5,000 additional.
What did the plaintiff give up by the marriage? The evidence would warrant the conclusion that she gave up insecurity for security. Her status as a part time clerk was replaced by that of a happy wife for nearly 15 years.
The majority opinion justifies a larger than usual award because of plaintiff’s lack of special training or skill. But defendant is not to be charged with her lack of skill or training. Defendant has worked at many jobs; his life has been one of long hours and hard work. His training as a beautician was taken under the G. I. Bill of Rights.
Can the award made of all the property plus $5,000 be justified in order that plaintiff shall not be worse off because of the marriage? The record would strongly suggest that plaintiff would have been unable to accumulate anything had she remained unmarried.
The plaintiff was given a substantial — yea a large — windfall.
The record discloses the following property awarded to plaintiff with indicated values :
(1) The Bountiful home — net value over mortgage approximately $10,000.
(2) Salt Lake City home (clear) value $4,000 to $5,000.
(3) Furniture which plaintiff testified as having a value of $4,000.
Defendant was awarded:
*87(1) 1946 Oldsmobile valued at $95.
(2) Defendant’s carpenter tools, value not indicated.
(3) Beauty shop equipment — $300.
Defendant receives $173 per month on account of service connected disability sustained by defendant while in World War Two.
The court awarded to plaintiff property valued at between $18,000 and $19,000, plus an award of $5,000, as a part of the allocation of property.
As heretofore observed, the 'court gave two options to plaintiff. Had the court given defendant the option of giving plaintiff one of the homes and $10,000, defendant would have been able to give plaintiff the Salt Lake City home and by selling the Bountiful home, pay the $10,000. Plaintiff testified that she would rather live in the Salt Lake City home if it wasn’t next to his folks. It was stated in appellant’s brief and not disputed by respondent that plaintiff has sold the Bountiful home.
I am of the opinion that if equity is to be done between the parties, defendant should either be given the home in Salt Lake City 'or be relieved entirely of the cash payment of $5,000.
The beauty shop equipment is valued at $300 but defendant has no place to use it. It was used in the basement of the Bountiful home. , . . . •
Even plaintiff indicated that under other conditions she should not be awarded all the property — she testified as follows: -
“I feel like whatever Mark and I have accumulated, we have accumulated it together, and I feel like, under any other circumstance, Mark would be entitled to it but not to take to some other woman, no.”
There is nothing in the decree to restrain plaintiff from taking the $23,000 to $24,000 awarded to another man.
HENRIOD, J., concurs in the conclusion reached by WORTHEN, J.