Emery v. Emery

I think the restraining orders should be sustained, at least in part.

The complaint alleges that plaintiff and defendant were intermarried on July 31, 1913, being more than 35 years ago. They have no children. The property described in the complaint, it is alleged, was accumulated since the marriage and it is alleged that "the money advanced which was the start of the accumulation * * * was advanced by the plaintiff, and that since said marriage and during the time of the accumulation of said property the plaintiff has worked and contributed a major portion of the efforts resulting in such accumulation."

It is alleged that all of the property in truth and fact is owned one-half by plaintiff and one-half by defendant by reason of the joint accumulation thereof.

I think it would have been more appropriate for the restraining orders to more particularly describe the property which defendant was prevented from disposing of, hypothecating or pledging. In other words, I think it is proper for defendant to dispose of, hypothecate or pledge what plaintiff concedes is his one-half interest in the accumulated property but that the restraining orders should be modified to prevent disposition or pledging of property which plaintiff in her complaint contends belongs to her.

I do not agree that the court in a divorce action has no authority to adjust the property rights of the parties. If there be compelling reason the award may be in a lump sum. Stefonick v. Stefonick, 118 Mont. 486, 167 P.2d 848, 164 A.L.R. 1211.

Section 5771, Revised Codes of Montana 1935, provides that "Where a divorce is granted for an offense of the husband, the court may compel him to * * * make such suitable allowance to the wife for her support during her life or for a shorter period, as the court may deem just, having regard to the circumstances of the parties respectively." Sections 5777 and 5778 provide for the disposition of the homestead. It has been held that the fact that special provision is made for disposition of the homestead does not preclude the court from assigning other real estate or personal property of the husband to the wife. Warne v. Warne,36 S.D. 573, 156 N.W. 60 (decided under statutes practically identical with ours). Other cases supporting this view may be found in the American Digest under the subject of "Divorce," section 242.

Much of the confusion on this subject in this state has arisen because of the case of Thrift v. Thrift, 54 Mont. 463,171 P. 272, 273. In that case there was substituted service only, upon a non-resident defendant. In such a case the court held that title to the husband's property could not be transferred to the wife but did so because the property was not brought under the control of the court so that it could be disposed of on substituted service. The court was careful to point out that "the court did not assume to transfer to plaintiff her own property, but the property of the husband." Here the court is merely asked to transfer to plaintiff that which is hers. The Decker case (Decker v. Decker), 56 Mont. 338, 185 P. 168, is of no consequence here because that was an action for separate maintenance and not for divorce. The same is true of the case of Boggs v. Boggs,119 Mont. 540, 177 P.2d 869. These three cases furnish the authority for the rule announced in Rufenach v. Rufenach,120 Mont. 351, 185 P.2d 293.

But, as above noted, since in this case plaintiff is asking that her own property, not that of her husband, be set aside to her, none of these cases is controlling here and we are not called upon at this time to determine whether in a divorce action the court may set aside to the wife property belonging to the husband.

I think, since the granting of a divorce divests the wife of the right of inheritance and the right of dower in her husband's estate, the court in its discretion may if it sees fit set aside to the wife a certain portion of the jointly accumulated property standing in the name of the husband under facts such as we have here where the wife's money went into the property first acquired and where the subsequent accumulations were through the joint efforts of both continuing for a period, as here, of 35 years. Under such circumstances the court is not divesting the husband of title to property which is his, but is merely setting aside to the wife that which in equity and good conscience already belongs to her.

We must assume that the allegations of the complaint are true for the purpose of this proceeding. If they can be substantiated by proof then plaintiff certainly should be entitled to have her own property set aside to her, and to have a restraining order preventing the defendant from disposing, encumbering or pledging any of her claimed interest in such property. Defendant of course should be permitted to dispose of or encumber whatever property concededly belongs to him. It may be too that after trial on the merits plaintiff may fail to establish her claim to the property involved but that does not deprive the court of the power to restrain disposition thereof until her rights may be determined.

The majority opinion asserts that the law presumes that an advance of money by a wife to buy property taken in the name of the husband is a gift. I accept that statement solely on the ground of stare decisis. My personal views on the subject are expressed in my dissenting opinion in the case of Bingham v. National Bank of Montana, 105 Mont. 159, 72 P.2d 90, 113 A.L.R. 315.

But at most the presumption of a gift is a rebuttable presumption that may be overcome by evidence to the contrary. The fact that there is no evidence in the record before us to overcome this presumption is of no importance at this stage of the proceedings.

The time has not yet arrived for trial of the case on the merits and much of the offered evidence was excluded on that ground.

The question before us now is, if we assume that plaintiff may prove the allegations of her complaint, can the court prevent disposition of the property meanwhile.

I think too that the court was warranted in its discretion in restraining defendant from having access to his home pending determination of the action. In Chapman v. Chapman, 25 N.J. Eq. 394, the court thought that the husband should not be excluded from the family home during the pendency of the divorce action. But in that case it does not appear that the husband had committed acts of violence against the wife. Here the court was warranted in finding that defendant knocked plaintiff down and kicked her and abused her on at least one occasion. True this was denied by defendant but this conflict in the evidence made the question one for the trier of the facts. I think we cannot say that the court abused its discretion in restraining defendant from having access to the family home pending the determination of the action for divorce. It is to be noted that if plaintiff's evidence on the point be accepted, and we cannot say that the court was not warranted in accepting it, then no great burden is cast upon defendant in being deprived of the right of access to his home because she testified that he never spends any time there during the day and for the past five years has spent only about two nights a week there. She does not want him there because she said he "drinks very heavily and he goes on some of his splurges and he is not to be trusted when he is drinking."

The majority opinion asserts that the complaint joins two or more causes of action improperly. I think that question may not be raised in this proceeding. But if it is properly raised I think the point is without merit. A divorce action is one in equity. Black v. Black, 5 Mont. 15, 2 P. 317. When equity takes jurisdiction of a case and grants equitable relief, it will maintain jurisdiction and render that further judgment which properly follows therefrom. Stevens v. Equity Mut. Fire Ins. Co.,66 Mont. 461, 213 P. 1110. And it is well settled that a complaint is not open to the objection of multifariousness which joins a demand for property rights with a demand for divorce. The general rule with supporting authorities is stated in 17 Am.Jur., section 310, page 307, as follows:

"Frequently, it is sought to join a prayer for the return of the plaintiff's property with the prayer for a divorce. Whether such a uniting of prayers is open to the objection of multifariousness seems to depend upon whether the property rights asserted grow out of the marriage relation. If they do, as for instance where the plaintiff claims relief in respect of community property, the uniting of a prayer for such relief with a prayer for divorce is generally held not to constitute a misjoinder. The weight of authority seems to support the view that independent of statutory considerations, a bill for divorce may properly include a prayer to impress a trust upon property or otherwise settle property rights other than those arising out of a claim of alimony where such rights grew out of the marriage relation and third persons are not directly involved. It has also been held that the complaint is not rendered multifarious by joining therein a prayer for a conveyance by the husband to the wife of lands paid for with her funds the title to which was taken in his name."

Likewise my associates hold that the complaint and affidavit contain only conclusions of law and not sufficient facts to warrant a restraining order. I think the complaint and affidavit contain the requisite allegations of facts to warrant the court in granting a restraining order. Furthermore, I think the validity of the temporary restraining orders first entered ex parte is not before us. Plaintiff as a part of the restraining order procured an order to show cause supported by her affidavit. Defendant made return thereto supported by his affidavit. A hearing was had and evidence for both parties introduced. On this evidence the court continued the restraining orders in effect subject to certain modifications. It specifically released the restraining order on the Midland National Bank and permitted defendant to withdraw funds from that bank standing in his name and made other modifications of the temporary restraining orders. Hence if the complaint or the affidavit were insufficient to warrant issuance of the temporary restraining orders defendant cannot now (and in fact does not) raise that point. My associates are raising the point sua sponte and I think without right or justification. The question before us is, does the evidence warrant the court in continuing the restraining orders in effect. I think it does.

True there was a failure of proof of some of the allegations contained in the affidavit of plaintiff. As stated in the majority opinion, plaintiff alleged in her affidavit that defendant "spends all the money coming into his possession for liquor and on his paramour." She offered no proof in support of the allegation. This allegation was made to support a restraining order against defendant preventing him from withdrawing funds standing in his name at the Midland National Bank and preventing the bank from paying or lending further sums to defendant.

Since plaintiff offered no proof in support of that allegation the court properly modified the restraining order as above noted. But absence of proof on this point does not affect other provisions of the restraining orders which I think were properly entered and on sufficient proof.

Neither do I attach importance to the fact that plaintiff has been able to block some of defendant's business transactions by refusing to give her signature. Absence of her signature will deter some, but perhaps not all people from consummating a deal with the husband.

I think the restraining orders should be modified as above indicated and, as modified, should be affirmed.