
    COX v. COX.
    No. 17761.
    Opinion Filed Nov. 29, 1927.
    (Syllabus.)
    1. Divorce — Appeal—Review of Evidence.
    In an action for divorce tbis court will consider all the evidence and weigh it, to ascertain whether or not' the judgment is against its weight; and if the judgment is clearly against its weight, then render or cause to be rendered such judgment as the trial court should have rendered; but, if not clearly against its weight, then it will affirm the judgment.
    2. Same — Judgment for Cross-Petitioner Wife on Ground of Abandonment Sustained.
    Be cord examined, and held, sufficient to support the judgment of the trial court.
    Error from District Court, Garfield County; Charles Swindall, Judge.
    Action ,by William P. Cox against Julia ,0. Cox. Judgment for defendant on her cross-petition, and plaintiff bring's error.
    Affirmed.
    A. L. Zinser, H. J. Sturgis, and Simons, MeKnight, Simons & Smith, for plaintiff in error.
    McKeever, Moore & Elam, for defendant in error.
   HEPNEB, J.

The plaintiff in error brought action against the defendant in error in, the district court of Garfield county to obtain a divorce. The sole ground alleged, in the petition of the plaintiff for such divorce was abandonment.

Tbe defendant, after obtaining’ an order for the payment 'of attorney’s fees and temporary alimony, filed her answer and eross-petition in the case, in which she alleged that during the month of March, 1918, the plaintiff deserted her and has ever since absented, himself from her without any just cause therefor.

The plaintiff in his reply denied the allegations in the defendant’s answer. Upon the issues thus joined, after hearing the evidence, the court found against the plaintiff and in favor of defendant and entered judgment accordingly; from which judgment the plaintiff has appealed to this court.

The trial court in its decree, among other things, found as follows:

“That the allegations of abandonment of tbe plaintiff ¡by the defendant as set forth in the petition of the plaintiff are not sustained by tbe evidence, and the testimony of the plaintiff of such abandonment is not corroborated by the evidence, and, the court further finds from the testimony of the plaintiff the fact to he that the defendant remained in Iowa with the consent of the plaintiff, and that the plaintiff did not request his wife, the defendant, to come to Enid for the bona fide purpose of living with her as his wife, or to resume the relation of husband and wife with the bona fide intent and purpose of having her do so, as is disclosed by his cold and indifferent attitude toward, the defendant, the tone of the correspondence, and his testimony at the trial, and while plaintiff stated that the defendant would be welcome to come to Enid, Okla., - bis action and conduct toward ber when she did come w-ex*e not such as would indude a wife to feel that her husband wanted her, nor such as would tend so to prove, and the court further finds that the separation of plaintiff and defendant resulted from the fault of the plaintiff and for that reason tbe prayer of plaintiff’s petition for a divorce should be refused and denied.

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“Tbe court further finds from tbe evidence that tbe allegations of tbe cross-petition of tbe defendant are true, and that plaintiff and defendant have not lived together _ as man and wife for more than one year immediately preceding the commencement of this action, during which time plaintiff has abandoned tbe defendant, and that the separation was brought about by tbe conduct and fault and, aggression of tbe plaintiff, and that tbe defendant should be granted an absolute decree of divorce from the plaintiff on tbe grounds of abandonment by tbe plaintiff for more than one year prior to tbe commencement of this action.”

Tbe court further found that the property of tbe .plaintiff would produce a rent of $2,-000 to $2,500 per annum over tbe upkeep and taxes, and that tbe defendant should be allowed alimony in the sum of $15,000, and tbe further sum of $ÍO0 suit money and $300 as attorney fee. It was directed that the said $15,000 should, be paid at tbe rate of $100 per month commencing on the 1st day of June, 1926, and on tbe first day of each month thereafter until tbe said $15,000 bad been paid, and awarded tbe defendant a first lien upon certain real estate to secure the payment oí the alimony.

It will be noted, that tbe defendant does not receive any part of the corpus of tbe property on which the lien is given. She, in effect, is awarded $100 per month during her life not to exceed a total of $15,000. The $100 per month is hardly one-half tbe rental value of the property. After tbe death of tbe defendant, tbe plaintiff, under the judgment of the court, is free to do what be pleases with tbe property on which tbe court awarded tbe lien to insure tbe payment of the alimony.

Tbe plaintiff and defendant owned jointly a piece of property in. Iowa that rented from $40 to $50 per month. Tbe property in Garfield county consisted primarily of 160 acres of land inherited by the plaintiff from bis parents. The trial court ordered that tbe plaintiff be given credit on tbe $100 per month for one-half of tbe rental value of tbe property in Iowa.

Was tbe evidence in this case sufficient to sustain tbe judgment of tbe trial court? As we view the case, this is really tbe only question for us to determine.

We have réad very carefully the able briefs presented by tbe counsel for both plaintiff and defendant. The evidence is clear and convincing that tbe plaintiff and defendant had, been separated for more than one year next preceding tbe filing of tbe suit. Tbe plaintiff contends that tbe defendant abandoned bim. Tbe defendant contends that tbe plaintiff abandoned her. Tbe trial court found in favor of tbe defendant on this issue.

While we have concluded that tbe evidence is sufficient to support the judgment of tbe trial court, in passing, we wish to say that tbe plaintiff is to be commended for tbe support given bis wife during tbe time they were separated. She was in bad health during all this time. A number of letters from the pi i intiff were introduced in evidence which show that be at all times was concerned as to her welfare, and be did support her. Tbe letters show that it was bis desire that she be well eared for.

The judgment, however, not being against tbe clear weight of tbe evidence, is affirmed.

BRANSON, O. J., MASON, V. O. J., and HARRISON, PHELPS, . LESTER, HUNT, CLARK, and RILEY, J.T., concur.  