Haskill v. Haskill

BARNARD, P. J.

The defendant has appealed, on the judgment roll alone, from an interlocutory judgment decreeing that the plaintiff is entitled to a divorce, awarding her the custody of a minor child, ordering the defendant to pay $30 a month for the support of this child and $30 a month for the support of the plaintiff, and dividing the community property by awarding the household furniture to the plaintiff and an automobile to the defendant.

The parties were married in 1909 and separated on August 23, 1938. Apparently, this plaintiff thereafter filed a prior action for divorce on the ground of cruelty and the defendant filed a cross-complaint on the same ground. This appears in the present record, aside from the findings, only by a copy of a judgment entered on April 27, 1939, decreeing that neither party was entitled to an interlocutory decree of divorce, but ordering the defendant to pay $60 a month for the support of minor children, which judgment is attached as an exhibit to the defendant’s answer.

In the present action, an amended complaint was filed on April 5, 1940. Aside from formal matters, it sets up a first cause of action based upon extreme cruelty. A second cause of action incorporates, by reference, all of the allegations of the first cause of action with the exception of those relating to cruelty and alleges wilful desertion continuing for more than one year immediately preceding the commencement of the action. A third cause of action realleges by reference the same portions of the first cause of action and alleges wilful neglect and failure to provide for more than a year prior to the filing of the complaint. The defendant moved to strike the main allegations of the first cause of action, aside from the formal matters, which motion was granted. The de

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fendant answered and, for some reason which does not appear, not only denied the allegations in the second and third causes of action, but also denied the allegations of the first cause of action relating to cruelty. As a second separate defense he “demurred” to the first cause of action. As a third separate defense to the first cause of action, he alleged that said cause of action had been finally adjudicated and that the judgment in the prior action, which was attached as an exhibit, is res judicata as to such issues. As a fourth separate defense, he alleged that since the day of the separation the parties had not resumed the marriage relation and that since the entry of the prior judgment he had complied with the court’s orders therein with reference to support for the minor children. As a fifth separate defense to the complaint “and the whole thereof and by way of a recriminatory defense” he alleged certain acts of cruelty on the part of the plaintiff, most of which are alleged to have occurred before the date of the separation.