Fillmore v. Fillmore

GRIFFIN, J.

Plaintiff and defendant were married in 1937. They separated in 1944. Plaintiff and cross-defendant commenced this action for divorce against defendant and cross-complainant on three separate grounds, extreme cruelty, wilful neglect, and wilful desertion. It was alleged in plaintiff’s complaint, in addition to certain acts of extreme cruelty, that for a considerable time immediately preceding the commencement of the action, plaintiff was in poor health and is still requiring constant medical care necessitating the expenditure of approximately $55 per month and that she is unable to pay said amount.

Defendant denied generally the allegations of the complaint and by way of cross-complaint he sought a divorce on the grounds of extreme cruelty and desertion and also sought an annulment of the marriage on the ground that plaintiff, at the time of her marriage, was physically incapable of entering into the marriage state by reason of the fact that she was suffering from cancer and concealed said known fact from defendant; that said physical incapacity still exists and is incurable.

. Plaintiff answered the cross-complaint, denied generally the allegations pertaining to the divorce and denied that at the time of her marriage she was physically unable to enter into the marriage state by reason of personal defects as alleged, and denied that she concealed the fact from defendant that she was suffering from cancer, but alleged that she did not know of such fact at the time of the marriage.

A minute entry of May 18, 1945, discloses that the cause

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came on for hearing and counsel for defendant dismissed the cross-complaint upon motion duly granted. The case was submitted on May 22, 1945. The court caused a memorandum to be entered in the minutes showing plaintiff to be entitled to an interlocutory decree of divorce, and “It is further decreed that the defendant pay to the plaintiff the sum of Sixty Dollars ($60.00) per month for support, maintenance and medical care, until further order of the court ...” that the defendant take nothing by his cross-complaint.

The proposed findings filed by defendant, to which plaintiff objected, contained a finding that plaintiff is in poor health and still requires medical attention at a reasonable cost of $60 per month and that defendant is able to pay said amount. It then sets forth a provision in reference to the term for which said amount shall be paid, which is the cause for plaintiff’s appeal from the judgment. It provides that plaintiff is entitled to $60 per month for six months but that said allowance shall automatically stop and end at the expiration of that period unless plaintiff files appropriate proceedings before the expiration of said six months’ period, establishing the necessity for a continuance of said monthly allowance, and if no proceedings are filed within said time said allowance shall terminate. Plaintiff proposed findings allowing her $60 per month “until further order of the court.” The court signed defendant’s proposed findings.