Gillespie v. Gillespie

VALLÉE, J.

Appeal by defendant from an interlocutory decree of divorce. He also appeals from an order denying his motion for a new trial. Since the latter order is nonappealable the appeal therefrom will be dismissed. The court found that defendant had been guilty of extreme cruelty toward plaintiff, without justification or provocation. Defendant asserts the finding is unsupported by the evidence.

The parties were married in New York in 1942. Defendant came to California in 1945; plaintiff, in 1946. They separated on January 23, 1952. Plaintiff testified she left defendant because he told her she was no longer needed, she could get her clothes and go; he asked her to leave, and made life so miserable for her she could no longer stay. On several occasions he threatened to strike her. On one occasion in 1950, he struck her with his hand on the side of the head and on the forehead, bruising it; she tried to get out of the house; he grabbed her by the arm, threw her back from the door and down onto a settee where he held her. As a result she had a “terrible headache” for several days afterwards. On one occasion, defendant closed and locked the house in which the parties were living, in an attempt to keep plaintiff out. On one occasion, in the presence of another person, defendant told her that she was “a nasty type of woman”; on another, also in the presence of a third person, that she was “a nasty old hag, nasty, dirty old hag. ’ ’ The fact that defendant made these statements to plaintiff was corroborated. On another occasion he told her she was “nothing but a lowdown type of woman, . . . just a loafer.” He told others in the presence of plaintiff that she did not have any sense, that she was crazy. Shortly before the separation defendant told plaintiff he had given her time to make up her mind about getting out. When

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she did not leave, he did not speak to or notice her,' ' just went about his business, ’ ’ until she left about a week later. Plaintiff testified she did not want to leave; she left because she had to, because defendant told her to go. A few months after plaintiff left the house a woman and her two daughters moved into it and remained there for several months. Defendant was living at the house during this time. On one occasion during this period, defendant, the woman and her daughters left the house in an automobile on a Saturday morning and did not return until Sunday evening. Plaintiff knew the woman and her daughters were living in the house and that defendant was also living there at the time. The evidence as to what occurred after plaintiff left the house was corroborated.