Norwich v. Norwich

SHINN, P. J.

This is an action wherein both parties sued for divorce, the wife charging cruelty and the husband by his cross-complaint alleging cruelty and desertion. Neither party specifically identified the community property, each alleging same to be in the possession of the other. By its findings the court sustained the husband's allegation of desertion and granted a decree to him and made a division of the community property between the parties. Both parties appeal.

In her appeal plaintiff wife claims that there was insufficient evidence to support the court’s finding that she was guilty of desertion although she makes no statement of the evidence on which the finding of desertion is based. In that circumstance it must be presumed that the evidence presented at the trial was sufficient to sustain the finding.

(Hickson

v.

Thielman,

147 Cal.App.2d 11 [304 P.2d 122].) However, in considering plaintiff’s claim that she was entitled to a divorce on the ground of extreme cruelty, we have read the record in order to ascertain the basis of that contention. As nearly as we can ascertain from her brief the alleged cruelty consisted of defendant’s refusal to maintain a home in Los Angeles and of letters she received from him from Ger

[808]

many, in one of which he sought her agreement to a divorce. The claim of cruelty is without substance. Defendant was an electronics engineer. His work took him to Fontana, California, for about four months. He asked his wife to move there with him and she refused. In 1953 he was transferred to El Paso; plaintiff visited him there for some two weeks and although an adequate home was provided for her, she refused to stay. March 1955, defendant was transferred to Germany in electronics work for the military. At the time he left and thereafter, he entreated her to make her home with him in Germany and she consistently refused. There was abundant evidence in corroboration of the husband’s testimony to the foregoing facts. The court found that plaintiff deserted defendant on March 28, 1955. From that date until the end of 1955, he sent his wife a weekly check which was never less than $104 and during that time he lived on his subsistence pay. Living accommodations in Germany were those provided for the military and defendant offered to provide others if plaintiff was not satisfied. The failure of plaintiff to mention in her brief any of the evidence relating to defendant’s requests that she accompany him and her refusals is understandable. In her testimony she did not deny that defendant had asked her to accompany him to the several places to which he was transferred. Neither did she testify that her numerous refusals were due to the unsuitability of the home defendant would provide for her. The finding that she was guilty of desertion is a conclusive answer to her contention that she suffered extreme anguish because of the separation.