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eBook details

• Title: Nuhn v. Nuhn
• Author : Supreme Court of Montana
• Release Date : January 22, 1934
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 55 KB

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Husband and Wife ? Divorce ? Alimony ? Award in Lump Sum ? Indebtedness of Defendant Husband to be Considered ? When Award Excessive ? Implied Findings ? Pleading and Proof ? When Pleading Deemed Amended to Warrant Admission of Evidence ? Receipt Open to Explanation by Parol Testimony ? Equity. Divorce ? Alimony in Lump Sum ? Indebtedness of Husband to be Considered ? Failure of Court to Make Finding ? Implied Finding. 1. While, in an action for divorce, where plaintiff wife is awarded an absolute divorce and alimony in a lump sum, the debts of the husband should be considered and deducted from his income or property, the fact that the court made no special finding relating thereto does not warrant the conclusion that the court must have found that no indebtedness existed; in such circumstances, and in the absence of a request for a finding in that behalf, one necessary to support the judgment will be implied. Trial ? Evidence Admitted Without Objection ? Insufficient Pleading ? Pleading Deemed Amended to Warrant Admission of Evidence ? Appeal. 2. Where evidence which might have been excluded as not warranted by the pleading of the party offering it was admitted without objection, it will be considered on appeal as though properly admitted, i.e., the pleading will be treated as amended to justify the admission of the evidence. Mortgages ? Satisfaction ? Recital in Effect Receipt ? Receipt Open to Explanation by Parol Testimony. 3. The recital in a satisfaction of a mortgage indebtedness that the debt secured thereby was fully paid and discharged is of no greater binding force than is an ordinary receipt for money paid, which is not conclusive but is open to explanation by parol or extrinsic evidence; the rule being otherwise where the receipt contains contractual stipulations. Divorce ? Equity ? Conflict in Evidence as to Indebtedness of Defendant Husband ? Courts Finding not to be Disturbed on Appeal. 4. Where the evidence in a divorce suit, equitable in its nature, was conflicting on the question of the validity of defendant husbands indebtedness, considered in arriving at the amount of alimony awarded, the courts finding will not be disturbed on appeal, it having been in a more advantageous position to pass upon the credibility of the witnesses than is the reviewing court. Same ? Equity ? When Findings of Coutt not to be Interfered With on Appeal. 5. The trial courts decision in an equity case upon questions of fact will not be reversed on appeal unless the evidence strongly preponderates - Page 597 against its findings, nor, when the evidence furnishes grounds for different conclusions, will such findings be disturbed. Same ? Alimony ? Amount to be Determined by Equities of Case ? Discretion. 6. Though the awarding of alimony, where the wife has been decreed entitled to an absolute divorce, is in a large measure a matter of discretion in the trial court, and it is authorized by law to make an allowance in a lump sum, the amount to be allowed is not a proportion of the husbands income or property, but is to be determined by the equities of the case and the financial condition of the parties; each case depending upon its own particular facts and circumstances. Same ? Circumstances Under Which Amount of Alimony in Lump Sum Held Excessive. 7. Held, that where, in a divorce action, the court found that the value of the defendant husbands property was $35,000, and there were no minor children to be supported, an award of $20,000 as permanent alimony, besides $500 for attorneys fees and costs, all but about $4,600 of which amounts had been paid at the time of hearing the appeal, was excessive, and the decree ordered modified by reducing the amount of the judgment in the sum of $4,600, the amount remaining unpaid.

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