Mohr v. Mohr

SPENCE, J.

This is an appeal by defendant, George L. Mohr, upon the judgment roll, from that portion of the judgment in the above-entitled action by which plaintiff was awarded $100 per month for her support. Said defendant also appeals from an order awarding plaintiff the sum of $1,100 as counsel fees.

By her amended complaint, plaintiff sought a divorce from defendant George L. Mohr and also sought to quiet title to certain property as against defendant Frank Mohr. Defendant George L. Mohr filed an answer and cross-complaint and defendant Frank Mohr filed an answer. The judgment determined the property rights between the parties and no appeal has been taken from those portions of the judgment dealing with the property rights. However, the findings of the trial court with respect to the property rights of the spouses are discussed by the parties in arguing the questions presented here and reference will be made thereto in summarizing the findings.

The trial court found that defendant was chargeable with extreme cruelty toward plaintiff but also found that plaintiff was chargeable with extreme cruelty toward defendant. It was therefore decreed that neither spouse was entitled to a divorce.

The trial court further found that certain property was the community property of the spouses. This community property consisted of equities in two parcels of real property and some personal property. The net value of said community property was found to be not less than $4,000 nor more than $8,000. Each party was awarded an undivided one-half interest in said community property. It was further found that the spouses and defendant Frank Mohr, their son, were the owners, as joint tenants, of eight parcels of real property. The value of said property, over and above encumbrances, was found to be not less than $60,000 nor more than $120,000.

In the findings filed in support of the judgment, the trial court further found: “That plaintiff is of the age of fifty-six years or thereabouts, and not capable of supporting herself by her earnings. That defendant George L. Mohr is of the age of sixty-five years or thereabouts, was formerly

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engaged in the contracting and building business and retired from said business during the year of 1926, and since said time has been engaged solely in the business of operating, maintaining and repairing the joint tenancy properties hereinafter described. That defendant George L. Mohr is well able, out of the income and principal of his undivided one-third interest in and to said joint tenancy properties, to pay plaintiff the sums hereinafter awarded for her support and maintenance.” The trial court concluded that plaintiff was entitled to $100 per month for her support and by the judgment ordered that defendant George L. Mohr “pay to plaintiff such sum as added to the income and proceeds received by plaintiff from the joint tenancy property hereinafter described will make a total of $100 per month”.