Dean v. Dean

VALLEE, J.

Plaintiff wife sued defendant for a divorce and a determination of the property rights of the parties (action No. D347169). In a separate action, defendant sued plaintiff for a divorce and an equitable division of the community property of the parties (action No. D 347589). The complaint in each action alleged extreme cruelty. Pursuant to stipulation, the actions were consolidated for all purposes. In the action brought by the wife, judgment was entered denying her any relief. In the action brought by the husband an interlocutory judgment was entered granting him a divorce and ordering the wife to pay him $1,000 from a bank account. The wife appeals from the judgment in each action. The appeals have been submitted upon one set of briefs and will be decided in one opinion.

Appellant’s first point is that the testimony of the husband was not corroborated. “No divorce can be granted . . . upon the uncorroborated statement, admission, or testimony of the parties ...” (Civ. Code, § 130;

Truax

v.

Truax,

62 Cal.App.2d 441, 444 [145 P.2d 88].) The husband testified. He did not present any evidence in corroboration of his testimony. Respondent says that the acts of cruelty testified to by him “are corroborated by appellant’s failure to deny, and in part by the witness Bedrna. ’ ’ The failure of the wife “to deny” did not constitute corroboration of the testimony of the husband. Neither the testimony of one party nor the failure of that party to testify can be taken as corroboration of that of the other for the purpose of proving a cause for divorce. There must be evidence in support of the cause of action upon which the divorce is granted in addition to the evidence of either or both of the parties.

(Stedman

v.

Stedman,

179 Cal. 288, 289 [176 P. 437] ;

Lemberger

v.

Lemberger,

55 Cal.App. 231, 235 [203 P. 786] ; opinion of Supreme Court on denial of hearing;

Sweet

v.

Sweet,