Serns v. Serns

WOOD (W. J.), Acting P. J.

This is an appeal from a judgment granting a decree of divorce to the cross-complainant on the ground of extreme cruelty. Appellant now asserts that the evidence is insufficient to support the findings and that the corroboration is insufficient to comply with the requirements of the law. At the time of their marriage, October 5, 1940, respondent was fifty-three years of age and appellant was forty-nine years old, both parties having been previously married. From the testimony of respondent it appears that appellant was extravagant in her living expenditures to such an extent that his practice as a physician was insufficient and he had to draw upon reserve funds. During all the period following the marriage he was in poor health; he did not care to argue with his wife and because he remained silent she called him a mouse. Appellant urged him to change the type of his practice and leave Santa Barbara. On at least one occasion she slapped him; she complained of his clothing and his table manners; she was jealous of his secretary, a young woman who with her brother had been left orphaned when they were fifteen years of age and respondent had since been helping them, giving the girl a job with him doing secretarial work. Notwithstanding this appellant wanted him to discharge his secretary. On various occasions when patients called at his home appellant surreptitiously listened in on conversations between him and his patients, 'and finally she told Mm to leave. Appellant in her testimony admitted that she had slapped respondent because she “thought he needed a good lesson.” She also admitted listening in on his telephone conversations; admitted that she nagged him and stated that she had “persistently” argued with him on one subject for five days.

The evidence in the case is conflicting and in an action for divorce, like other actions, a finding of the trial court is binding if supported by sufficient evidence. This includes the finding of the infliction of grievous mental suffering by one party upon the other. In passing upon this

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particular finding the trial court must consider all the circumstances of the case, including the intelligence and refinement of the party charging cruelty. The conclusion reached by the trial court will not be reversed on appeal unless the evidence is so slight as to indicate an abuse of discretion.

(Keener