Cummins v. Cummins

MR. JUSTICE COOPER

delivered the opinion of the court.

A decree of divorce was awarded to the plaintiff in the court below upon allegations of extreme cruelty. Upon the trial it was agreed that the value of the entire real and personal prop*erty involved was then $35,486.23, including $8,200 inherited by the defendant from his mother’s estate. Upon that basis, the district court awarded to plaintiff personal property amounting to $9,224, consisting of a certificate of deposit, ten shares of bank stock, and $2,200 in money, payable in monthly installments of $100. A piano valued at $225, and some household goods valued at $175, were by agreement also given to the plaintiff. After the court had announced its award, the plaintiff moved that the allowance be increased so that she would receive one-third of all the property. The court denied the motion, and entered a final judgment for plaintiff in the sum of $9,224. Plaintiff appeals.

Accepting, as we must, the undisputed evidence of the cashier [1,2] of the First National Bank of Intake, that the ten shares of bank stock had a value in addition to its par value of $100 ,- the uncontroverted statement of counsel that the certificate of deposit, with the accrued interest, amounted to more than $6,000; the admitted value of $400 placed upon the piano and household goods given the plaintiff at the trial, and the $2,200 payable in monthly installments of $100, it is plain that the court did consider not only the value but the nature of the property as well in fixing the alimony allowed the wife, and that its discretion extended to and covered the $8,200 about which so much is said. The property involved consisted of a ranch, a livery-stable, a hotel which was unoccupied, out of repair and nonprodueing, household goods, a piano, and other personal property. From it the court selected and awarded what might *229 be termed the liquid assets—property palpably more readily convertible into cash, better suited to her needs and more in keeping with her mental and physical capacity to manage and control than the hotel, farm, livery-stable, and other property of the defendant. We must therefore assume that the court did have in mind all the circumstances and conditions of the parties as well as the nature and value of the property, and that, in parceling it out, it fairly and reasonably exercised the discretion vested in it. Before we can disturb a finding of the trial court, we must be convinced that the property was not distributed in accordance with the condition and necessities of the wife, hut that the court misconceived or misapplied its judicial power, and failed to reach a result which fairly responded to the equities and justice of the case. By section 3677, Revised Codes, the court is required to exercise its discretion in making the order; and by section 3679 the power to make suitable allowance for the support of the wife during her life having regard to the circumstances of the parties, was lodged wholly in the court below. It is our duty to review the orders and judgment of a trial court in proceedings of this character; but to revise them only upon a clear showing of an abuse of discretion in their making. We shall not therefore stop to see whether our estimate of the allowance corresponds with that of the trial court.

The property allotted to plaintiff could certainly be more readily handled by her than the property the court left for the defendant, and bespeaks on behalf of the district court a due regard for the rights of the plaintiff in the premises. As is said in Nelson on Divorce and Separation, in section 908: “There is no absolute rule for determining the amount which the wife should receive when an absolute divorce is rendered. It is not a proportion of the husband’s income or of his property. The amount is to be determined by the equities of the case and the financial condition of the parties.”

Before a district court can be put in error upon the charge [3] that it has refused to consider a material matter, or has committed a judicial wrong, something more than the unsup *230 ported assertion of counsel is required. Proof of it must be pointed out in the record, or the inference therefrom must be irresistible, from a fair consideration of the whole ease. (Farwell v. Farwell, 47 Mont. 574 , Ann. Cas. 1915C, 78, 133 Pac. 958 ; Consolidated G. & S. Min. Co. v. Struthers, 41 Mont. 551 , 111 Pac. 150 ; Keezer on Marriage and Divorce, sec. 277.)

The claim of appellant that this is a case where the trial court, in the exercise of its judicial discretion, refused to encompass an important element involved in the' case, as in Montana Ore Pur. Co. v. Boston etc. Co., 22 Mont. 159 , 56 Pac. 120 , and Felton v. Spiro, 78 Fed. 576 , 24 C. C. A. 321 , is not borne out by the record.

This disposes of all the matters comprehended in the many assignments of error, and leaves this court no alternative but to affirm the judgment. It is so ordered.

Affirmed.

Mr. Chief Justice Brantly and Associate Justices Reynolds, Holloway and Galen concur.