Nieri v. Nieri

NOURSE, P. J.—

Plaintiff sued for separate maintenance, later amending her complaint and praying for a divorce. Defendant answered and cross-complained praying for a divorce. Both parties charged cruelty and plaintiff separately charged adultery. Judgment was entered in favor of plaintiff on the ground of cruelty. A finding was made that the charge of adultery was not proved. On the issue of cruelty the court found that it consisted of frequent slappings and beatings. In the adjustment of the community property the court awarded the plaintiff $25,000 in cash, a Packard automobile and all the household furniture. To the defendant was awarded $25,000 in cash and real property, valued at $8,000. Both parties appealed, the plaintiff attacking the finding against the charge of adultery and the award of property interests, the defendant attacking the finding of cruelty as not corroborated, the finding that the plaintiff herself was not guilty of cruelty, and the finding as to the value and proper division of the community property. Because of the cross-appeals we will refer to the parties as plaintiff and defendant as they originally appeared in the trial court.

[210]

We have reached the conclusion that the judgment should be affirmed on both appeals and will not give a detailed state-, ment of facts as it would serve no good purpose to do so.

The real serious contention by the appellant-defendant is that there was no corroboration fbr the court’s finding of cruelty. Finding No. 11 reads: ‘ ‘ That, on numerous occasions, defendant Silvio Nieri violently struck, beat, grabbed, and shook plaintiff and called plaintiff vile, profane and abusive names.” There was ample evidence given by plaintiff herself to support this finding of fact, and defendant does not contend to the contrary. However, we are satisfied that there was sufficient evidence of other acts of cruelty, which evidence was fully corroborated by numerous witnesses and which would fully support a finding of cruelty sufficient to support a divorce on that ground.

These facts are undisputed: Plaintiff and defendant maintained two homes or apartments. One of these apartments consisted of two bedrooms and bath on the second floor of the mortuary which the parties were operating in San Bruno. On the night of February 20, 1948, defendant and corespondent mentioned in the adultery count entered these apartments at about 10:30 p. m. At about that time the plaintiff accompanied by two investigators and a photographer drove up and parked opposite the mortuary. These witnesses testified that they at that time witnessed defendant and corespondent in the front bedroom practically naked and that they waited until approximately three hours later when they rang the doorbell and were admitted to the apartment. They then saw the corespondent in Mrs. Nieri’s bed and the “battle” followed. Both the defendant and the corespondent admitted these facts, though strenuously denying all acts of adultery which is not the issue at this point.