Opinion
No. 21035. Department One.
April 3, 1928.
DIVORCE (80) — DIVISION OF PROPERTY — SOURCE OF TITLE. In decreeing a divorce, the court may make a division of the separate properties of the parties, regardless of its source, as well as of the community property.
Appeal from a judgment of the superior court for King county, Kinne, J., entered June 4, 1927, upon findings in favor of the plaintiff, making a division of the property on awarding a divorce. Affirmed.
Greene Henry and J.E. McGrew (Chas. H. Heighton, of counsel), for appellant.
Shorett, McLaren Shorett and Edward R. Taylor, for respondent.
The plaintiff, Mrs. Leonhard, commenced this action in the superior court for King county, praying for a decree of divorce from the defendant, Mr. Leonhard, upon the ground of cruel treatment and personal indignities, and that equitable division be made of all their properties. The defendant answered and cross-complained, praying for a decree of divorce from the plaintiff upon substantially the same ground; that all his separate property be awarded to him; and that her separate property only be awarded to her. Both parties proceeded upon the assumption that they had no community property of any consequence. Trial upon the merits resulted in findings and an interlocutory decree of divorce being awarded to the plaintiff, awarding to her all of her separate property and awarding to her a substantial interest in the defendant's separate property. From this disposition of the case in the superior court, the defendant has appealed to this court.
At the time these parties separated in December, 1926, they had been married to each other approximately four and one half years. Respondent, Mrs. Leonhard, was then fifty-two years old, and appellant, Mr. Leonhard, was then fifty-four years old. She had never been married. He had been married and separated from his former wife by a decree of divorce. The trial court found, in substance, appellant to have been guilty of cruel treatment and personal indignities to respondent, as the cause of her leaving their home, such as to entitle her to be awarded a divorce, and without substantial fault on her part.
Respondent, at the time of the marriage, had a small millinery business which she sold soon thereafter, and also possessed other property of some considerable value. She has not since then been engaged in any earning business or occupation other than aiding appellant in the management of an apartment house owned by him, which she seems to have done in a helpful manner. He is a man of apparently considerable business qualifications; she also seems to have some such qualifications, but manifestly has much less money earning qualifications than he has. At the time of the trial, her property had increased somewhat in value, he having aided her therein, as she had aided him in the management of his apartment house. Her separate property at the time of the trial, as found by the court, was of the approximate value of $7,000. His separate property at the time of the trial, as found by the court, was of the approximate value of $70,000.
[1] By the decree, respondent was awarded her separate property, and was also awarded a money judgment against appellant in the sum of $13,000, which he was privileged to satisfy to the extent of $8,000 by conveying to her title to certain described property owned by him in Seattle of that approximate value, and was also privileged to further satisfy the judgment to the extent of $1,500 by conveying to her title to certain other described property owned by him in Seattle of that approximate value; and so reduce the money judgment against him to $3,500. Thus, of the whole of the properties of both, of the approximate total value of $77,000, respondent was awarded property of the approximate value of $20,000, and appellant was awarded property of the approximate value of $57,000.
It is contended in behalf of appellant that the evidence called for the awarding of the divorce to him instead of to respondent; that is, that she, and not he, was proven to be at fault in the cruelty and indignities resulting in their separation. We have painstakingly read the evidence, and even reading it in cold type we are inclined to agree with the trial judge upon this question. At all events, we are clear that the evidence does not preponderate against the trial court's finding on this question. There is considerable conflict in the evidence, and the trial judge's opportunity to see and hear the witnesses testify, and the manifest atmosphere of the case, gave him much better opportunity to determine the truth than we have. To discuss the evidence in detail in this opinion would serve no useful purpose. The story in detail, like most of its kind, is best left out of our printed reports, unless there be some special reasons to the contrary, which are not present here. We conclude that the trial court did not err in awarding to respondent the divorce upon the theory that the fault lay with appellant.
It is contended in behalf of appellant that, in any event, respondent was not so free from fault as to entitle her to be awarded such a proportional interest in his separate property as was decreed in her favor. We cannot see our way clear to disturb the disposition of the property rights of the parties as made by the decree, having regard to the respective merits of the parties, to the condition in which they will be left by the divorce, and to the respective parties through whom the properties were acquired; as we are admonished to do by Rem. Comp. Stat. § 989 [P.C. § 7508], relating to the disposition of property of parties in divorce actions. Such questions are not determinable by any rule of law less general than this statutory rule. We think the evidence fairly supports the findings as to the respective valuations of the property of each party, as well as the finding of fault in appellant. The following of our decisions, we think, are in harmony with the conclusion we here reach: Willson v. Willson, 84 Wn. 240, 146 P. 615; Williams v. Williams, 86 Wn. 113, 149 P. 342; Fitzpatrick v. Fitzpatrick, 105 Wn. 394, 177 P. 790; Hughes v. Hughes, 118 Wn. 262, 203 P. 376; Jones v. Jones, 140 Wn. 90, 248 P. 57. Our decisions in Nelson v. Nelson, 131 Wn. 646, 230 P. 819, and Logan v. Logan, 141 Wn. 62, 250 P. 641, are of particular interest in this connection as showing that separate property of the losing party may be awarded to the successful party as well as the making of equitable division of the community property.
The decree is in all things affirmed.
MACKINTOSH, C.J., TOLMAN, MITCHELL, and FRENCH, JJ., concur.