Kessler v. Kessler

ALLEN, J.

Upon a reconsideration of this case on a rehearing we are of opinion that the judgment and order of the trial court should he reversed to the extent and on the grounds stated in the opinion originally filed, which are as follows:

Action for divorce, alimony, and to declare a trust. Judgment for defendant Kessler denying a divorce, and for plaintiff for $50 per month maintenance during her natural life, with decree that defendant Minor holds property described in complaint in trust for defendant Kessler, from which judgment of maintenance and decree declaring trust all the defendants appeal.

The court finds that plaintiff and defendant Kessler were married in 1901, and are husband and wife; that at the date of the marriage defendant was the owner of certain real property of the value of $15,000, subject to an encumbrance of $3,000; that, in addition, he was possessed of money to the amount of $1,300, and some other personal property of small value; that he had two daughters by a former marriage, one of whom is defendant, Anita Minor, the other a daughter of seventeen years; that shortly after the marriage the husband, preparatory to a trip to Mexico, placed the $1,300 in bank in the name of his daughter Anita, who, the court found, held the same in trust for the father. This the wife objected to, and quarrels were precipitated on account thereof; that afterward, on or about September 12, 1902, plaintiff left defendant’s home and has never since lived with him as his wife; that afterward, on October 8, 1902, Kessler made a convey

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anee of all his separate estate, being the premises described in this action, to his daughter Anita Minor; that at said date he was of the age of forty-six years, and had ability to earn wages and carry on business; that after the plaintiff left her home the husband invited her to return, but such invitation was not in good faith and was not accepted. She never offered at any time to return to him. In June, 1903, she commenced this action, and in her complaint specifies acts of the grossest cruelty on the part of her husband, on account of which she justified her living apart from him. The court, upon the final hearing, found none of the material allegations to be true, but, on the contrary, “that it is not true that the actions of the defendant Kessler were sufficient to constitute extreme cruelty toward plaintiff,” and, further, that the following part of paragraph 7 was untrue: “That her condition became so intolerable by reason of his actions that she was forced to leave him.” The only facts of any materiality found by the court in plaintiff’s favor were that before the separation both parties were nervous and irritable, caused by ill-health, and that upon one occasion, during a controversy over the payment to the daughter of a sum of money, defendant Kessler said to plaintiff that she would only get what she helped to earn, and nothing more. But the court further finds that at this time, or shortly after this quarrel, a reconciliation took place, and each mutually forgave their unkindness toward each other. From these facts the trial court, as a conclusion of law, determined that the wife was justified in leaving her husband, and, while it denied the divorce, rendered a judgment in the plaintiff’s favor for $50 per month as for her separate maintenance, and in such judgment found that certain other judgments, aggregating $1,250, for alimony