Jenkins v. Jenkins

SHINN, P. J.

Plaintiff sued for divorce; defendant filed a cross-complaint. Each charged the other with cruelty. Findings and judgment were in favor of plaintiff on the corn-

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plaint and the cross-complaint. Defendant appeals. We will take up the points on appeal in the following order.

It is contended that although plaintiff’s testimony would have been sufficient, if corroborated, to establish the charge of cruelty there was legally insufficient corroborative evidence. The contention is not sustainable. Plaintiff testified to numerous acts of violence at the hands of defendant extending over a number of years and the use by defendant of much vile language and name-calling. The opprobrious epithets were those commonly employed by persons addicted to the use of bad language. Plaintiff’s testimony was corroborated by that of a friend and neighbor that she frequently heard defendant shout such epithets at plaintiff, following which she had observed plaintiff suffering "heart spasms.” Two notes written by defendant to his wife were placed in evidence. They furnished evidence of defendant’s vulgarity. Also in evidence were numerous cigarette stubs adorned with lipstick. On three separate occasions after she had been absent from home plaintiff found the cigarette stubs in the house and asked defendant about them. His answers were uninformative and extremely rude. Plaintiff was naturally distressed. The court made no mistake in finding defendant guilty of extreme cruelty.

A further contention is that the home of the parties stood in joint tenancy and that the court was in error in finding that it was community property, as alleged by plaintiff. This contention also is untenable. There was evidence of the following facts: The property had been purchased with the earnings of defendant for use as a home. The parties, at the suggestion of friends and of an escrow clerk, informed the clerk that title should be taken by them in joint tenancy ; at that time the parties did not know the difference between joint tenancy and community property; defendant did not know what community property was; the only reason they had for using the form of joint tenancy was that they had been told that in the event of the death of either of them title would go to the survivor without proceedings in probate ; there had been no previous understanding that the property would be put in joint tenancy nor any discussion of it. The escrow clerk told them that title should be put in joint tenancy as a matter of convenience. The evidence was clearly sufficient to justify a finding that this was the sole purpose the parties had in following the advice that title should be placed in joint tenancy. It is a common practice for a hus