Cacic v. Slovenska Narodna

APPEAL AND ERROR — HUSBAND AND WIFE — SEPARATE MAINTENANCE — EVIDENCE — ATTORNEYS FEES. 1. Appeal and Error — Review of facts in equity case. Wifes separate maintenance action was an equity case and on appeal the Supreme Court had right and duty to review the facts; however, such duty did not necessarily require the overturning of the trial judges findings. 2. Appeal and Error — Effect of conflicting evidence. Where the evidence is conflicting in separate maintenance action, the Supreme Court inclines towards sustaining trial judges findings, since he has the advantage of having seen the witnesses and having observed their demeanor and appearance and hence is in a better position to judge of their credibility. 3. Husband and Wife — Substantial evidence to sustain trial court. In wifes separate maintenance action, there was sufficient substantial and credible evidence to sustain the trial courts findings of cruelty on the part of husband toward wife to justify the courts conclusion even though some of the wifes evidence was discarded as incredible. 4. Husband and Wife — Duty of trial court as to viewing evidence. Where evidence was in sharp conflict, even if the trial court thought some of the wifes testimony as to husbands cruelty was incredible, the most the trial court could have done was to treat the rest of her testimony with distrust and the trial court was not bound to disregard all of her testimony. 5. Husband and Wife — Evidence supported finding of cruelty and non-desertion. Evidence supported trial courts conclusion that husband was cruel Page 304 and that wife who left husband after having lived with him for 27 days did not desert husband and that husbands offers and solicitation of condonation were not made in good faith. 6. Husband and Wife — Effect of evidence of condonation. Where offer of condonation consisted of series of letters written by husband to wife after she left him and husband kept and retained copies of the letters, it was proper for trier of fact to conclude that letters were sent for purpose of making evidence for husband if wife should sue him for separate maintenance. 7. Husband and Wife — Offer of condonation, when ineffectual. An offer of condonation is ineffectual where the conduct of the spouse making the offer has been such as to convince the trier of facts in action for separate maintenance that further cohabitation would be dangerous or intolerable or where the offer is not accompanied with reasonable assurances that the offer can be accepted with due regard to health, safety and comfort. 8. Husband and Wife — Consideration to fixing amount of separate maintenance. In fixing the amount that should be allowed to wife suing for separate maintenance, the court should be governed by what is fair and reasonable, having in mind the needs of the wife, the financial ability of the husband, the manner in which the wife has been accustomed to live, and should leave an incentive for reconciliation rather than fix a premium for separation. 9. Husband and Wife — Award of separate maintenance was adequate. In separate maintenance action by wife who lived with husband only 27 days prior to separation and who did nothing to help accumulate husbands financial resources and who earned $25 a week in Ireland prior to her marriage, evidence disclosed that award of $700 per month to wife who had moved to New York City was excessive and that award of $300 per month would be adequate for her support and maintenance in the style and mode of living to which she was accustomed. 10. Husband and Wife — Attorneys fees properly allowed. In separate maintenance by wife, evidence supported award of $3,000 to wife for attorneys fees in addition to the $2,000 theretofore awarded her for such purpose.