Negley v. Negley

MARKS, J.

This is an appeal from an interlocutory judgment of divorce in favdr of plaintiff which divided the community property and awarded the custody of the two minor children to plaintiff.

[356]

Plaintiff has filed no brief here. He has filed an affidavit stating that he is without funds to employ an attorney, as well as to have a brief printed. He consented to the submission of the ease but challenged generally the statement of facts in defendant’s brief.

Plaintiff filed his complaint alleging cruelty that had caused him grievous mental suffering. Defendant’s cross-complaint contained like allegations in asking for a divorce and custody of the children.

Defendant urges that there was no sufficient evidence of cruelty and none of grievous mental suffering to support the judgment in favor of plaintiff and that it was a breach of discretion to award plaintiff the custody of Betty May Negley, a daughter, 16 years old, and Donald Richard Negley, a son, 11 years old.

The divorce action was tried very briefly on February 20, 1947, with the result already indicated, except that the custody of the daughter was then given to defendant. Findings of fact were waived.

On March 13, 1947, and before entry of the interlocutory decree, defendant, with another attorney, moved to reopen the case to take further evidence on the question of the custody of the children. The trial court granted the motion with the order that ‘ The matter then will be reopened upon stipulation of counsel on the issue of custody of the children only. ’ ’

The evidence on the question of the cruel treatment of plaintiff by defendant is very brief. Plaintiff testified in his own behalf on this question as follows:

“Q. Now you allege in your complaint that during the time you were living with your wife that her conduct toward you caused you to suffer mentally and physically. Will you tell the court what the trouble was? A. In the first place, just church all the time, continually. It was coming to—just before I left it was every night. And she would insist on the children going just as re'gularly as she did, and myself, too. She wouldn’t go anywhere with me; wouldn’t go to a show, anyplace I asked her to go. And I couldn’t smoke in my own house; couldn’t have an ashtray in my own house. The neighbors there brought one so I would have one in the house. And just picking at me and nagging at me all the time. No matter who I worked with, who I went with, whatever it was, whatever. It was just on my mind all the time;