Reynolds v. Reynolds

*305MR. JUSTICE ANGSTMAN:

Plaintiff brought this action for separate maintenance upon the ground that defendant without provocation inflicted physical and mental cruelty upon her causing her to leave him and live separate and apart from him.

The cause was tried to the court sitting without a jury. Findings of fact and conclusions of law went in favor of plaintiff and against defendant. The court awarded plaintiff a decree of separate maintenance and ordered defendant to pay the sum of $700 per month for her support and maintenance and $3,000 attorney's fees in addition to what had theretofore been allowed and $400 costs. Defendant has appealed from the judgment and order for costs, attorneys’ fees and maintenance allowance.

The transcript consists of three volumes containing more than 700 typewritten pages, but we find no useful purpose in summarizing all the evidence here. Defendant contends that the evidence is insufficient to support the findings and judgment and particularly the findings that defendant was guilty of such conduct as to entitle plaintiff to live separate and apart from him and to entitle her to a decree of separate maintenance.

Defendant in reliance on section 93-216, R.C.M. 1947, as interpreted in Sullivan v. March, 124 Mont. 415, 225 Pac. (2d) 868, and other cases cited in the Sullivan case, contends that we should overturn the findings of the trial judge on the question of cruelty inflicted by defendant upon plaintiff.

Since this is an equity case we have the right and it is our duty to review the facts, but it is a mistaken notion that this power or duty necessarily requires the overturning of the findings made by the trial judge.

Where the evidence is conflicting we incline toward sustaining the trial judge’s findings, since he has the advantage over us of having seen the witnesses and having observed their demeanor and appearance, and hence is in a better position to judge of their credibility than are we. Williams v. Williams, 85 Mont. 446, 278 Pac. 1009. Stefonick v. Stefonick, 118 Mont. *306486, 167 Pac. (2d) 848, 164 A.L.R. 1211; Hjermstad v. Barkuloo, 128 Mont. 88, 270 Pac. (2d) 1112; Hart v. Honrad, 131 Mont. 284, 309 Pac. (2d) 329.

The record shows that the parties met in Ireland in the spring of 1952 where plaintiff then lived and where defendant was vacationing. After defendant returned to the states they corresponded with each other by letter, and on November 15, 1953, plaintiff met him at Long Island City, New York, where they were on that day married. They then took up their residence in Glendive, Montana, where defendant was engaged in business. At the time of the trial plaintiff was thirty-six years of age and defendant sixty-seven. The marriage seemingly was doomed to failure from the beginning. Plaintiff left defendant on December 12, 1953, returning to New York City after living with defendant twenty-seven days.

She testified that she was forced to leave defendant because of his treatment of her. She related a series of brutal acts on the part of defendant which need not be repeated here. His counsel contends that her story is so improbable that it is unworthy of belief and comes within the rule of Casey v. Northern Pacific Ry. Co., 60 Mont. 56, 198 Pac. 141. We cannot say that the trial court was in error in not applying the rale of the Casey case as to her testimony. Certainly all of her testimony could not be condemned within the rule of that case. Some of it was corroborated by disinterested witnesses.

There was sufficient substantial and credible evidence to sustain the trial court’s finding of cruelty on the part of defendant toward plaintiff to justify the court’s conclusion even though some of plaintiff’s evidence be discarded as incredible.

The evidence on most points is in sharp conflict. If the court thought some of plaintiff’s story incredible the most it could have done was to treat the rest of her testimony with distrust. R.C.M. 1947, section 93-2001-1, subd. 3. The court was not bound to disregard all of her testimony.

The cold record does not indicate that the evidence is insufficient to support the findings of the court with respect to *307cruelty on the part of defendant justifying plaintiff in leaving him Defendant pleaded and submitted proof that he offered in good faith to effect a reconciliation and requested plaintiff to resume the marital relationship and solicited condonation. This was done before the commencement of the action and again after it was pending. Plaintiff refused the offers because she concluded they were not made in good faith when measured against nis previous conduct.

The court did not err in concluding that the offers and solicitation of condonation were not made in good faith, and that they did not bar plaintiff’s cause of action. The record shows that at the very time defendant was soliciting condonation he was exploring the possibility of obtaining a church annulment of the marriage. There was other evidence direct and circumstantial tending to show an absence of good faith on the part of defendant in seeking condonation, and there is no evidence tending to show that plaintiff would be free of the danger of renewed cruelty were she to return and live with defendant. Compare 1 Nelson, Divorce & Annulment (2d. ed.), section 4.31, pages 125 et seq.

The offer of condonation consisted of a series of letters written by defendant to plaintiff after she had left him. The record shows that defendant kept and retained copies of the letters. “Such conduct too clearly indicates the coldness and deliberation of the offer and its lack of good faith.” 1 Nelson Divorce and Annulment (2d. ed.), section 4.32, page 128.

It was proper for the trier of the facts to conclude that letters sent under such circumstances are sent for the purpose of making evidence for the sender. Wilhelm v. Wilhelm, 130 Pa. Super. 143, 197 A. 496; McKee v. McKee, 107 N.J. Eq. 1, 151 A. 620; Popovics v. Popovics, 98 N.J. Eq. 350, 129 A. 126.

Likewise an offer of condonation is ineffectual where the conduct of the spouse making the offer has been such as to convince the trier of the facts that further cohabitation would be dangerous or intolerable or where the offer is not accompanied with reasonable assurances that the offer can be ac*308cepted with due regard to health, safety aud comfort. 1 Nelson Divorce and Annulment (2d. ed.), section 4.36, page 134, and see Bovaird v. Bovaird, 78 Kan. 315, 96 Pac. 666; Slavinsky v. Slavinsky, 287 Mass. 28, 190 N.E. 826; Roy v. Roy, 47 R.I. 81, 129 A. 830; Csanyi v. Csanyi, 93 N.J. Eq. 11, 115 A. 76; Danielly v. Danielly, 93 N.J. Eq. 556, 118 A. 335.

The court stated the applicable rule in Wise v. Wise, 159 Md. 596, 152 A. 230, 231, where it said: “The determination of the question as to whether the appellant was wrong in her refusal to live again with the appellee depends on the kind and degree of mistreatment to which she was previously subjected. It was incumbent upon him to prove that the causes and circumstances of the separation were not such as to prevent his wife, with due regard to her safety, comfort and self-respect, from accepting his proposal for a reunion. ’ ’

The proof did not satisfy the trial judge in this respect, and we cannot say that the trial court was in error in its conclusion that the wife was not guilty of desertion under R.C.M. 1947, section 21-112, as contended by defendant.

This case is not comparable to Giebler v. Giebler, 69 Mont. 347, 222 Pac. 436 and Clem v. Clem, 97 Mont. 570, 36 Pac. (2d) 1034, relied on by defendant. In those eases there was no cruelty involved. The parties had been living separate and apart by agreement and the cases were controlled by a different statute, R.C.M. 1947, section 21-111, reading: “Consent to a separation is a revocable act, and if one of the parties after-wards, in good faith, seeks a reconciliation and restoration, but the other refuses it, such refusal is desertion.”

The next contention is that the court erred in awarding plaintiff $700 per month for her support. It is contended that the law favors reconciliation of the parties and that for the court to be as liberal as it was in the award for separate maintenance removes the incentive for reconciliation which the law favors. Boggs v. Boggs, 119 Mont. 540, 177 Pac. (2d) 869.

The question here is did the court make such an unreasonable award as to fall within the rule. In fixing the amount that *309should be allowed to plaintiff the court should be governed by what is fair and reasonable having in mind the needs of the plaintiff, the financial ability of the defendant, the manner in which she has been accustomed to live and should leave an incentive for reconciliation rather than fix a premium for separation. 3 Nelson, Divorce & Annulment (2d. ed.), section 32.40, pages 410, 411.

In this case it is shown that defendant has considerable financial means. The parties were married only twenty-seven days until the separation took place. Plaintiff did nothing to help accumulate the financial resources now held by defendant. She offered proof that $700 is necessary for her support in New York City. However, she had not been accustomed to living in New York City. She had been receiving about $25 per week as wages in Ireland. She testified that a suitable apartment in New York City would cost her $300 per month. There was evidence that apartments were available at a cost of about $100 per month even in New York City. Other items which she claimed in making up the $700 per month were out of line with her accustomed mode of living.

We think in view of all the circumstances shown in the record, an award of $300 per month would be adequate for plaintiff’s support and maintenance in the style and mode of living to which she has been accustomed, leaving separation neither attractive nor cohabitation a necessity.

Contention is likewise made that the award of attorneys’ fees in the sum of $3,000 in addition to what had theretofore been paid was excessive. The amount theretofore ordered paid was $2,000. The court did not abuse its discretion in this regard. There was evidence from reputable attorneys that would have sustained a much larger award. The evidence on the point was conflicting. We sustain the order of the trial judge on this point.

The cause is remanded to the district court with direction to modify the order and judgment as to the award to plaintiff for support and maintenance in accordance with the views herein *310stated and as thus modified the judgment and order will stand affirmed.

MR. CHIEF JUSTICE HARRISON and MR. JUSTICE CASTLES, concur.