228 MEIER v. MEIER.
Opinion Per BEALS, C. J. 172 Wash.
[No. 24106. En Banc. March 13, 1933.]
AGNES MEIER, Respondent, v. EDWARD W. MEIER,
Appellant. «1»
[1] DIVORCE (80) - DISPOSITION OF PROPERTY - DIVISION. An
interlocutory divorce dividing the community property between
the parties will not be reversed on appeal unless it very
clearly appears that the trial court committed error that
requires such action, which does not appear in this case
(TOLMAN and STEINERT, JJ., dissenting).
Appeal from a judgment of the superior court for
Pierce county, Remann, J., entered May 4, 1932, upon
findings in favor of the plaintiff, in an action for
divorce, tried to the court. Affirmed.
Burkey & Burkey, for appellant.
BEALS BEALS, C. J. - Plaintiff instituted this action for the
purpose of procuring a decree of divorce and a share
of the property belonging to her husband and herself.
After a bearing, the trial court entered an interlocutory
order awarding the divorce to each of the parties
and dividing their property between them. From this
order defendant appeals, assigning error only upon
the division of the property as made by the trial court.
[1] From an examination of the record, we are satisfied
that, in granting a divorce to both wife and husband,
the trial court did not err. In actions for divorce,
the judgment of the superior court should receive
especial consideration. The trial judge has the advantage
of seeing the parties and their witnesses, can propound
to them such questions as may be deemed material
to a complete disclosure of all facts, has power to
direct that additional witnesses be summoned, and occupies
an unusually advantageous position in determining
«1» Reported in 19 P.2d 929.
MEIER v. MEIER. 229
Mar. 1933 Opinion Per BEALS, C. J.
the questions presented for decision. An interlocutory
order granting a divorce should not be reversed
unless it very clearly appears that the trial court
committed error which requires such action. We are
satisfied that no such case is here presented, and that the
record does not warrant reversal of the order granting
a divorce.
The parties were married during the month of February,
1925. Appellant is a bookkeeper and respondent
a stenographer. After her marriage, respondent
continued in her employment at all times, save that,
for the past two years or so, she has worked no more
than half time. The trial court found that all the
property of the parties was community in its nature, and
divided the same between them on that basis. At the
time of the divorce, the property was worth between
six and seven thousand dollars, of which appellant
received a substantial portion, although less than half.
Appellant, while conceding that the superior court
exercises a large discretion in making such a division
of property as is here presented, argues that the trial
court failed to have sufficient regard to the merits of
the parties and the source of the property which was
being divided.
Careful examination of the record convinces us
that no showing is made which requires reversal of
the order entered by the superior court. While the
award to respondent seems liberal, that court was in
a better position than are we to determine the matter,
and such an order as was here entered will not be
overturned unless it clearly appears that the trial court
failed to do substantial justice between the parties.
It can not be held that such a showing is here made,
and the judgment appealed from is affirmed.
MILLARD, MAIN, MITCHELL, HOLCOMB, and BLAKE, JJ.,
concur.
230 MEIER v. MEIER.
Dissenting Opinion Per TOLMAN, J. 172 Wash.
-Concurring-
PARKER
-Concurrence-
PARKER, J. (concurring) - I concur in the affirmance
of the interlocutory order in so far as it awards the
divorce, because there is no assignment of error or
argument of counsel challenging the order in that respect.
I concur in the affirmance of the interlocutory
order in so far as it settles the property rights of the
parties, because I cannot see that the trial judge
abused his discretion in that respect. This, as I see
this appeal, is the only question we are here called
upon to decide.
-Dissenter-
TOLMAN
TOLMAN, J. (dissenting) - While I quite agree that,
in actions for divorce, as in all matters of equity, the
judgment of the trial court should be given great
weight and be followed unless against the preponderance
of the evidence or contrary to the law, yet, since
the legislature alone may prescribe the grounds upon
which the marital tie may be severed, the trial court
and this court are alike limited and bound by the plain
terms of the statute; and neither may disregard those
terms or read into the statute grounds for divorce
which the legislature in its wisdom has excluded.
Divorce is statutory only, and the statutory grounds
for divorce, Rem. Rev. Stat., SS 982, no longer include
that somewhat indefinite provision permitting the
granting of a divorce in cases where the court is
satisfied that the parties can no longer live together. Under
the present statute, the only possible ground upon
which this decree can be sustained is subdivision 5 of
SS 982, supra, which reads:
"Cruel treatment of either party by the other, or
personal indignities rendering life burdensome."
I see nothing in the evidence justifying a finding of
cruelty, and the trial court made no such finding. The
sole and only finding of fact upon which he based his
decree is:
MEIER v. MEIER. 231
Mar. 1933 Dissenting Opinion Per TOLMAN, J.
"That for more than one year last past the defendant
has made no effort to conceal the fact that he has
neither love nor affection for the plaintiff and has by
numerous annoying acts and words made the homelife
of plaintiff burdensome and that plaintiff has been
guilty of like conduct toward defendant so that it is
no longer possible for the parties to live together as
husband and wife."
It seems to me that this finding must have been
drawn with the old statute in mind, and for the purpose
of complying with the indefinite provision already
referred to, which was repealed by the amendment of
1921. I find therefore neither evidence nor any finding
of fact which will support the decree.
A careful reading of all of the evidence convinces
me that this is somewhat of an extreme case of divorce
by agreement of the parties, rather than upon any
ground mentioned in the statute.
The sole and only witness on the part of the plaintiff
was the plaintiff herself, and all of her testimony
upon the divorce issue is as follows:
"Q. Since the last three or four years or more has
Mr. Meier made any effort to conceal the fact that he
does not care for you? A. No, he has not. Q. And
has by various annoying acts and words made the home
life impossible? A. Yes, he has. Q. Without detailing
what they were, that is the fact? A. Yes, sir. Q. To
such an extent so that you separated the forepart of
November, 1931? A. Yes, sir. Q. And have lived separate
and apart ever since? A. Yes, sir. Q. You are
both satisfied that you cannot resume the marital
relation? A. Yes, sir."
On cross-examination, the only further evidence
brought out on the divorce issue was the following:
"Q. When did you quit living with him? A. On
the 2d of November, 1931. Q. You just walked out of
the house? A. Yes, I did."
232 MEIER v. MEIER.
Dissenting Opinion Per TOLMAN, J. 172 Wash.
The defendant husband, as his defense or in support
of his cross-complaint for divorce, wholly without
support or corroboration by any other witness, testified
as follows:
"A. My wife refused to take care of her duties at
home like any other woman would naturally do. I
would not have expected her to cook three meals a day
or anything like that, but I did expect one once in a
while. Q. In taking care of the home, was it customary
for her to get breakfast for you? A. Never had a
breakfast. Q. Where did you go for breakfast? A.
Down town. Q. That was customary in your home?
A. Absolutely, with the exception of a very few times,
maybe on Sunday once in a while. Q. Would she keep
things in the home so that you would be able to get
meals? A. Never a thing in the home at all. Q.
So that if you did make up your mind to get a meal
at home, what did you do? A. Had to go to the store
and buy. Q. She has testified that for a long period
of time you had shown by your attitude toward her
that you had no love for her; is that the fact? A. I do
not think it is at all. I cannot understand how she
figures that at all. I think it is just the opposite.
Q. What has been your conduct toward her in the way
of endeavoring to show affection toward her? A. I
have been nice to her, - (interrupted). Q. And I will
ask, what has been her attitude toward you with reference
to that? A. I have tried to do everything I could
out there to make the home comfortable; I would not
quarrel with her; I would not start any arguments with
her at all; tried to treat her as nice as any one could
possibly. MR. LLOYD: Now, do you want to go into
all these items? I made my examination as skimpy as
I could. THE COURT: Of course he is asking for a
divorce too. Q. She left you? A. Yes. Q. When?
A. November 2d, last. Q. Did you endeavor to get her
to return? A. I did. Q. And she refused? A. Absolutely;
and I offered that she quit her job and take
care of the home properly and she refused. Q. Was it
your desire that she worked? A. No, it was not.
I have told her many many times to quit her job and stay
MEIER v. MEIER. 233
Mar. 1933 Dissenting Opinion Per TOLMAN, J.
at home. MR. LLOYD: I suppose this is on your defense
MR. BURKEY: Yes. MR. LLOYD: Very well. Q. Was
she inclined to outbursts of temper against you? A.
Yes, she was. She had a bad temper and disposition,
and could not do a thing with her whatsoever.
anything crossed her at all she would quit listening to
reason; it did not make any difference how I went at
her. Q. Do you think it possible under the present
circumstances for you and her to get along? A. For my
part I made the best of it and in my opinion she has
made a mess of things, as she has; now it is impossible."
I find nothing else in the entire record bearing on the
divorce issue, and even if the bare, unsupported conclusion
of the parties that they can no longer live together
is to be accepted at its face value, still I see no
proof of cruelty, and nothing warranting the legal
severance of the marital tie.
The desertion by the wife, if it be desertion, was of
only a few months' duration, and had not ripened into
ground for divorce when the action was commenced,
when the cross-complaint was filed, at the time of the
trial, or even when the case was first argued on appeal
in this court.
It is true that no error is assigned directly upon the
granting of a divorce to the wife, and none could be
assigned by the appellant upon the granting of a
divorce to him; but the errors that are assigned all
relate back to and are founded upon a divorce having
been awarded, because, except a divorce was granted,
the court could not have gone into the matter of a
property settlement. But, at any rate, the appeal is
from the entire decree, and brings the whole case here
for review, and this court is not so helpless as to be
compelled, under the circumstances here shown, to
affirm a decree of divorce which it feels was procured
234 DUCKWORTH v. MICHEL.
Syllabus. 172 Wash.
by consent of the parties and not for any statutory
cause.
The testimony of the husband far more nearly entitles
him to relief than does that of the wife show
cause on her part; but, taken at its best, with every
intendment in favor of the interested party who gave
the testimony, it shows only domestic problems of a
not unusual sort which both parties had managed to
bear for more than six years of life together, and such
as, by means of mutual forbearance and mutual
concessions, they ought to solve with reasonably
satisfactory results to themselves.
In my opinion, the judgment appealed from should
be reversed and the action dismissed.
STEINERT, J., concurs with TOLMAN, J.