Opinion
Argued July 16, 1931
Modified July 28, 1931 Rehearing denied October 20, 1931
Appeal from Circuit Court, Multnomah County.
CLARENCE H. GILBERT, Judge.
Divorce suit by Carrie B. Billion against Vernon A. Billion, wherein defendant filed a cross-complaint. From a decree in favor of plaintiff and dismissing defendant's answer and cross-complaint with prejudice, defendant appeals.
MODIFIED. REHEARING DENIED.
John H. Kelley, of Portland, for appellant.
Henry S. Westbrook, of Portland, for respondent.
This is a divorce suit. On December 20, 1929, Carrie B. Billion filed her amended complaint in the circuit court of the state of Oregon for Multnomah county, wherein she alleged that for more than one year immediately preceding the filing of the suit she had been an actual resident and inhabitant of Multnomah county, and that, "up until a few days ago," the defendant had been living at Reno, Nevada. She further alleged, in substance, that she and the defendant were married at Spokane, Washington, on March 6, 1907; that three surviving children were born to them, viz, Lyman Vernon, Mary Belle, and Elizabeth Adell Billion, 19, 18, and 14 years of age respectively at the time of the bringing of the suit, all of whom were in the care, custody and control of the plaintiff in Portland, Oregon, and that the plaintiff was a fit and proper person to have their care and custody; that, for more than one year immediately preceding the filing of the complaint by plaintiff, the defendant had deserted and abandoned the plaintiff and their children above named, and that, prior to the defendant's desertion of her and of their children, though she had at all times performed all of her duties and obligations under her marriage contract with the defendant, his attitude toward her was one of continuous nagging, quarreling, contentious domineering and slurring.
For a second further and separate cause of suit, she alleged that the defendant had been guilty of cruel and inhuman treatment toward her, committed without provocation on her part, in this:
That, in April, 1928, the defendant, with the knowledge that plaintiff and their children were without fuel and without money and means with which to purchase fuel, when he learned that plaintiff had connected an electric stove which he had in plaintiff's home and that she was using it for heat for herself and the children, disconnected the stove and removed it from plaintiff's home, thereby leaving her with no fuel in the house, with the result that she and the children were compelled to pick up boards, boxes, and such other articles as they could find that could be used for fuel with which to keep themselves warm;
That, during the month of December, 1928, the defendant, a man of wealth and means, and who at that time had willfully failed and neglected to support the plaintiff and their children, and with the knowledge that the plaintiff was without money and means of support, left Oregon and went to Reno, Nevada, for the purpose of continuing to fail and neglect to support his family, and that since that time he has continued his wrongful conduct in leaving plaintiff and their children without any means of support and maintenance whatever; that, during that time, plaintiff's health was poor and she was troubled with her eyes; but that, because of defendant's conduct as above set out, she was compelled to do sewing to assist in the support of the children and herself, and that such labor had rendered her nervous, and hurt and affected her eyes and her general health; that the defendant instituted a false and malicious suit for divorce against her in the courts of Nevada, and that such action upon his part caused her great mental worry and suffering, injured her health, made her nervous, and rendered her life burdensome; that, in his complaint thus filed, he alleged:
"That the defendant (plaintiff herein) without cause or provocation for more than six years last past did willfully and against the will and wishes of the plaintiff voluntarily and willfully desert the plaintiff, and that said desertion has been continuous ever since said date."
She alleged that during the time the defendant's suit was pending in Nevada he failed and refused to contribute anything toward the support of plaintiff or their children; that, on April 24, 1929, he filed a second complaint in the courts of Nevada, in which he charged that she, with the willful and false intent to deceive people into believing that her husband was dead, gave her marriage status as a widow and her residence as 340 East 24th Street North, Portland, Oregon, and in which he made oath that she "has been cross, crabbed, discontented, petulent, nagging, quarrelsome, fault-finding, splenetic and spiteful." She averred that this statement was untrue; that it was made for the purpose of hurting and injuring her; and that such treatment caused her to become sick and nervous, and rendered her life unhappy and burden some. She alleged that, on July 15, 1929, the defendant made and filed an affidavit in which he referred to plaintiff's suit for a divorce pending in the Oregon courts and made the following statement:
"That defendant (plaintiff herein) is more mercenary than merciful, more avaricious than affectionate, more covetous than a Christian. * * *
"That for more than seven years defendant has pursued an unjustified ruthless, mercenary, malicious, mendacious and fruitless course towards plaintiff * * *, and has repeatedly declared to him and others that she would not stop her efforts in that behalf until she had stripped plaintiff of all he owned or had forced him to spend it all in litigation."
She averred that these statements were false and were made by the defendant with willful intent to injure her, and to defeat the award of maintenance and support to herself and their children by the Nevada court.
For a third separate cause of suit, plaintiff averred, among other things, that, on July 10, 1929, the defendant filed an affidavit in the court and cause in which the present suit was brought, in which he stated:
"That he is a resident of Reno, Nevada, and states the fact to be that he is also a citizen of the state of Nevada, is domiciled there, has his permanent home in said state, and is not and since on or about the 2d day of August, 1928, has not been a resident or citizen of the state of Oregon."
She prayed for $250 per month for temporary and permanent alimony, $75 per month for the support and maintenance of their children, and for $1,000 for attorney's fees. She alleged that the defendant was the owner in fee simple, "subject to certain notations hereinafter made," of lot 14, block 2, Maegly Highland, lots 3 and 4, block 98, East Portland, and lots 2, 3 and 4, block 1, Carter's Addition to East Portland, which she averred to be of the total reasonable value of $75,000, and in all of which real property she averred that she possessed a dower right; that, in addition to her dower, she had a homestead right, to the extent of $3,000, in lots 2, 3, and 4, block 1, Carter's Addition to East Portland, upon which she and her family resided; that she was the head of the family, and that the defendant had abandoned his homestead rights under the laws of Oregon in leaving and absenting himself therefrom.
The defendant admitted that he was a resident of the state of Nevada, and that he was living at Reno therein. He admitted that he commenced a suit for divorce in the state of Nevada predicated upon the ground of cruelty and desertion, and averred that each allegation contained in his complaint filed therein was true. He admitted that he made the affidavit to which this plaintiff refers, and averred that the statements therein contained were likewise true. He denied that $250 per month, or any other sum, would be a reasonable contribution to the plaintiff for temporary and permanent alimony, or that $75 per month, or any other sum, would be a reasonable sum for him to contribute for the support and maintenance of their children, and in this regard alleged that he has always been willing and anxious to support his children to the best of his ability. He denied that $1,000, or any other sum, would be a reasonable sum for plaintiff's attorney's fees herein. He alleged that he was the owner of real property of the value of $30,000, and no more; that this property was encumbered by mortgages and taxes in the sum of approximately $18,000, and that at the time of the filing of his answer these mortgages and taxes were delinquent. He denied that the plaintiff had contributed $1,630 toward the purchase of any real property.
For a further and separate answer, and by way of cross-complaint, the defendant, after making allegations as to the residence of the parties hereto, their marriage, and the birth of their three children, set down the history of the former litigation between them as disclosed by the judicial records, and alleged that, in view of the recorded facts, the plaintiff should not now be permitted to make the allegations contained in her amended complaint for the reason that the allegations therein have been fully litigated, determined and a decree entered as to all of such matters. He then alleged that after a decree on mandate of the Supreme Court had been entered in the circuit court of Multnomah county dismissing one of the plaintiff's former suits with prejudice, he, by himself and by his attorney, urged the plaintiff to return to him and live with him as his wife, but that the plaintiff refused and declared that she would never live with him again, and that she had no love or affection for him. He averred that he was the owner of the real property hereinbefore described, and the plaintiff had no right or interest in or to that property; that the plaintiff was the owner of a large and valuable ranch in Idaho, from which she received a large income, and also owned a residence in Clatsop county, Oregon, and that she was well able to support herself from the income from her ranch and her property in Clatsop county. He said that he had at all times fully performed all his duties and obligations to the plaintiff and to their family.
He prayed that plaintiff's complaint be dismissed, with prejudice, and that a decree be entered granting to the defendant a divorce from the plaintiff, and the custody and control of the minor children.
The plaintiff filed her reply denying the new matter set forth in the answer, and put at issue the matter alleged in the defendant's cross-bill for a divorce. Concerning the property owned and possessed by the defendant, the plaintiff averred that, during the time the defendant abandoned his family and left them without maintenance or support, he "has been worth, over and above all of his debts, from $50,000 to $100,000." She alleged that lot 14, block 2, Maegly Highland, Portland, was purchased with $1,630 of her money; that lots 3 and 4, block 98, East Portland, constituted a garage property, which was encumbered by a mortgage in the approximate sum of $12,000, and that it was worth at least $60,000 and brought an income of $250 per month; that this property was formerly mortgaged for approximately $18,000, but that through the economy and joint earnings and savings of plaintiff and defendant the mortgage had been reduced in the sum of approximately $6,000. She admitted that she owned land in Idaho consisting of a farm of 160 acres, but averred that it was encumbered by a mortgage in the sum of $3,100, and that there would be no income from the property for at least a year, and probably two years. She admitted that she owned a house and lot at Gearhart, Oregon, which was beach property, and was encumbered by a mortgage then in default, which mortgage was for a sum greater than the value of the property.
As a result of the trial, the circuit court granted the plaintiff a divorce from the defendant, with one-third of the real property of the defendant, $6,000 alimony, $50 per month for her support and the support of the minor child, $750 attorney's fees, and costs, and dismissed the answer and cross-complaint of the defendant, with prejudice. The defendant appeals.
For nine years last past, each of the parties hereto has earnestly sought an annulment of their marriage contract. The plaintiff herein has filed two former suits in this court (See Billion v. Billion, 122 Or. 68 ( 256 P. 389), Idem, 124 Or. 415 ( 263 P. 397), and during this period of time the defendant has twice instituted suit for divorce at Reno, Nevada. The record establishes beyond all controversy that these litigants will never again attempt to live together as husband and wife. In the course of the litigation, each has combed the history of their entire married life in an attempt to bring to light faults of the other. But, notwithstanding the shortcomings attributed to this plaintiff, there is manifest in her a characteristic both outstanding and admirable: She has reared with care their three children. She has kept them together. She has sewed for hire until her eyes have become weak. She has gone into the homes of others and labored with her hands, sweeping, cleaning, and scrubbing, in order that she might keep the children together, supply them with food, shelter and clothing, and provide for them an education. In this, the defendant has helped only when required by the court to do so.
Soon after the decision by this court of the second suit brought by the plaintiff herein, Vernon A. Billion, husband, without the advice of his attorney, disappeared from his usual haunts and secretly took up his residence in the state of Nevada; and the first information that his wife or children received that he had left the state of Oregon and had become a resident of Nevada came in the service of a divorce complaint and summons upon the wife. That suit was later abandoned for the reason that at the time it was filed he had not yet acquired a residence in the state of Nevada. Thereafter, the plaintiff commenced this suit, following which the defendant commenced a second suit in Nevada but was later enjoined from prosecuting the same.
The present suit is predicated upon cruel and inhuman treatment of the plaintiff by defendant, rendering her life with him burdensome, and, further, upon willful desertion by the defendant for more than one year immediately prior to the commencement of the suit.
The early rule declaring the acts which constitute cruel and inhuman treatment has been greatly modified. The difference is well pointed out in the case of Goff v. Goff, 60 W. Va. 9 ( 53 S.E. 769), digested in 9 Ann. Cas. 1083, where the annotator, in an extensive note at pages 1090, 1091, wrote:
"According to the early rule, there must have been either actual violence committed, attended with danger to life, limb, or health, or there must have been a reasonable apprehension of such violence. Mental suffering, distress, or injury, and bodily injury resulting from mental suffering, were entirely insufficient to constitute cruelty [citing many cases]."
Continuing, the annotator states the modern rule as follows:
"The majority of the modern and better considered cases have repudiated the early rule as taking too low and sensual a view of the marriage relation, and it is now very generally held that any unjustifiable conduct on the part of either the husband or the wife, which so grievously wounds the mental feelings of the other spouse, or so utterly destroys the peace of mind of the other, as seriously to impair the bodily health or endanger the life of the other, or which utterly destroys the legitimate ends and objects of matrimony, constitutes cruelty or extreme cruelty, although no physical or personal violence may be inflicted, or even threatened, or reasonably apprehended."
Among the many authorities in support of this note appear the following from this court:
Boon v. Boon, 12 Or. 437 ( 8 P. 450); Ryan v. Ryan, 30 Or. 226 ( 47 P. 101); Benfield v. Benfield, 44 Or. 94 ( 74 P. 495). See also, Beckley v. Beckley, 23 Or. 226 ( 31 P. 470); Crim v. Crim, 66 Or. 258 ( 134 P. 13); Belmont v. Belmont, 82 Or. 612 ( 162 P. 830); Coos v. Coos, 82 Or. 693, 162 P. 860; Steele v. Steele, 96 Or. 630 ( 190 P. 716); Bowers v. Bowers, 98 Or. 548 ( 194 P. 697); White v. White, 100 Or. 387 ( 190 P. 969, 197 P. 1080); Hawley v. Hawley, 101 Or. 649 ( 199 P. 589); Vinson v. Vinson, 111 Or. 634 ( 226 P. 233).
In the second suit between these parties (see Billion v. Billion, 124 Or. 415 ( 263 P. 397), Mr. Justice COSHOW, in rendering the opinion for the court, wrote:
"This suit presents a striking illustration of how husband and wife should not conduct themselves.
* * * * *
"We cannot grant a divorce to either without doing violence to the law of this state and the former decisions of this court."
But the instant cause presents a different situation. While the parties are the same, the facts presented are widely different. The failure of the defendant to provide food, clothing and shelter for his wife and children, and his willful desertion of them, constitutes facts that cannot be explained or overcome. This court has held over and over again that a voluntary separation of one of the married parties from the other, without justification either in the consent or wrongful conduct of the other, constitutes willful desertion: Sisemore v. Sisemore, 17 Or. 542 ( 21 P. 820); Wilhelm v. Wilhelm, 90 Or. 435 ( 177 P. 57); Blair v. Blair, 124 Or. 611 ( 265 P. 415).
The trial court heard and saw the witnesses as they detailed from the witness stand the story of a father's negligence, the tale of a husband's desertion of wife and children. A setting down in our reports of the tale of sickness and distress suffered by his family while this defendant was in search of a divorce in the state of Nevada would profit nothing to the parties or to the profession. With certain exceptions hereinafter noted, the decree of the lower court will be affirmed.
The testimony of the secretary of the Equitable Savings Loan Association, taken from the original ledger sheets of the company, shows that the real estate owned by the defendant is all encumbered by mortgage. It appears therefrom that the property described as lots 2, 3 and 4, block 1, in Carter's Addition to East Portland, bears a mortgage for $2,000, dated April 15, 1919, of which principal amount there remained unpaid at the time of the trial hereof a balance of $671.02. In addition, there were unpaid taxes in the amount of $459.42, "and there is better than $130 of accrued interest on these taxes." This property, as well as the lots referred to as the garage property in East Portland, is also subject to a second mortgage in the sum of $2,340. This testimony shows that lot 14, block 2, Maegly Highland, bears a mortgage in the amount of $700, dated December 2, 1919, on which there remained unpaid the principal sum of $168.87. In addition thereto, the record shows a balance of insurance premiums and taxes advanced under this mortgage in the sum of $311.47, and something like $12 accrued interest. This property is encumbered with a second mortgage for $275. It likewise shows that lots 3 and 4, block 98, East Portland, referred to as the garage property, are encumbered with a mortgage for $15,000, bearing date September 26, 1924, on which, at the time of the trial, there remained due the principal sum of $11,425.36, as well as a balance of $668.29 due on taxes and insurance, and about "$50 that accrued since February 20, 1930."
The appraised value of the property is as follows:
Lots 2, 3, and 4, block 1, Carter's Addition to East Portland:
Dwelling __________________________ $ 4,000 Cash value of ground ______________ 7,500 _______ Total value of property _________ $11,500 Would bring at forced sale ________ $ 9,500
Lot 14, block 2, Maegly Highland:
Dwelling __________________________ $ 2,000 Cash value of ground ______________ 1,000 _______ Total value of property _________ $ 3,000 Would bring at forced sale ________ $ 2,500
Lots 3 and 4, block 98, East Portland (garage property, consisting of two-story and basement building):
Building __________________________ $16,000 Cash value of ground ______________ 25,000 _______ Total value of property _________ $41,000 Would bring at forced sale ________ $35,000
This building was constructed at least twenty-five years ago, and has been remodeled for garage purposes. Only a part of the basement can be used "on account of too many posts."
How much more, if any, the indebtedness of these parties has grown since the taking of the testimony, we cannot say. Nor are we certain of the amount of special assessments, if any, that constitute liens upon this property. At the time of the trial the holder of the mortgages was demanding payment. It is the hope of the writer that the parties to this litigation, to the end that they may save themselves from a complete monetary loss, will attempt to cooperate in the disentanglement of their financial affairs.
When the defendant appealed this cause, he was unable to procure a stay bond. The plaintiff caused execution to issue, whereupon the sheriff sold at sheriff's sale the real property above described, and the plaintiff became a bidder and the purchaser of the property for the amount of her liens, aggregating $7,975.32.
Reaching our final determination of this case, we state the following as our authority for the decree we shall enter here:
"An appellate court may wholly affirm or reverse a decree appealed from, or it may affirm in part and reverse in part, or affirm with modifications." 5 Ency. Pl. Pr., 965, 966.
The courts have often held that, where a decree is reversed in part and affirmed in part, such a reversal does not destroy the lien of so much of the decree as is affirmed: Shepherd v. Chapman, 83 Va. 215 ( 2 S.E. 273). See, also, collection of authorities in 5 Ency. Pl. Pr., p. 966, note 2.
In view of the age of the defendant — which, by the law of nature, brings with it a material lessening of earning power — the condition of the real property, and the fact that the plaintiff is awarded one-third of all the realty possessed by the defendant, the decree of the trial court will be modified, in this:
In lieu of the award to plaintiff of the sum of $6,000 as gross alimony, we hereby award her as such alimony the sum of $2,500.
Further, in view of the testimony adduced by the defendant, we direct that, in lieu of the sum of $750 awarded to plaintiff as attorney's fees for carrying on this litigation, the plaintiff recover of and from the defendant as such attorney's fees the sum of $500.
In all other respects, the decree appealed from is affirmed.
By reason of this decree, the sale of the real property above referred to is null and void, and is hereby ordered set aside as of no effect.
BEAN, C.J., BELT and CAMPBELL, JJ., concur.
Petition for rehearing denied October 20, 1931 ON PETITION FOR REHEARING ( 3 P.2d 1113)
The defendant has filed a petition for a rehearing. For a statement of the issues made, see our original opinion.
One of the chief objections made is that we failed to consider the efforts of the defendant to effect a reconciliation with his wife. We fully considered the matter presented in that regard, and from such consideration we reached the same conclusion as did the trial court; i.e., that a good-faith effort was not made by defendant to become reconciled with his wife. The record indicates that he did call upon his wife on one occasion and that, in a sneering tone, he asked her to make up. There is no testimony in the record tending to show that the messages concerning a reconciliation were messages from the defendant made in good faith for the purpose of persuading his wife to live with him again. We regret to annul a marriage contract when it is probable that the parties thereto could live together in peace and harmony. We held in Hawley v. Hawley, 101 Or. 649 ( 199 P. 589), that divorce is prima facie prejudicial to the public interest, and that it is the policy of the state not to destroy, but to preserve, the status of marriage. But the statute prescribes a specific ground for divorce, and, when proof in support of such ground comes before us it is our duty to grant a divorce. We believe that these parties litigant can no more make up their differences and live happily together than can a camel pass through a needle's eye.
The opinion is likewise criticised because the testimony of Elizabeth Billion was confused with that of her mother, the plaintiff herein. Elizabeth testified at length as to the hardships of their home life. Concerning the fuel, she testified that "we borrowed fuel from the neighbors and took down old fences and under the front porch got some planks, boards, and my aunt got some fuel for us," and she testified that they were frequently without food. She testified that she went out and did housework to help support the family, while her mother sewed.
The record presents a pitiful tale of the struggle of the family of the defendant for food, clothing and shelter in the freezing winter weather. It tells the story of the acquisition of old clothing from other persons, and of the mother's toil in an endeavor to make clothing for her children therefrom in order to keep them warm. In addition, it tells the story of her sewing for hire, though ill, until her eyesight failed. This, while the husband and father was in the state of Nevada in quest of a divorce.
We think the litigation in this case should end. From a perusal of the testimony of record, we are satisfied that our former decision was right and just. The petition for a rehearing will be denied.
BELT and CAMPBELL, JJ., concur.
BEAN, C.J., absent.