Baca v. Baca

MUSSELL, J.

This is an appeal by the defendant from an interlocutory judgment in an action for divorce. Appellant first contends that the trial court erred in failing to find that the evidence of condonation compelled a judgment denying plaintiff a decree of divorce. This contention is not meritorious. While there was some evidence relative to condonation, the record contains ample evidence to support the trial court’s findings and judgment, and under such circumstances they will not be disturbed on appeal.

(Berniker

v.

Berniker,

30 Cal.2d 439, 444 [182 P.2d 557].) The evidence upon which appellant bases his argument in this connection is that the parties continued to live in the same house after the complaint was filed in the instant action and that numerous acts of sexual intercourse occurred between them while they were living together after the action was commenced. However, the respondent testified that the acts of intercourse were involuntary on her part and there was no testimony by either of the parties that they agreed to a reconciliation. At the time of the hearing, on an order to

[850]

show cause, the trial court ordered the defendant to pay $120 per month for her support and that of the minor child of the parties, providing plaintiff and said child continued to reside in the family home; otherwise the defendant was directed to pay the sum of $170 per month for such support. The order did not prohibit the defendant from continuing to live in the home. This he did, and the record supports the inference that plaintiff’s continued residence in the home was necessary because she did not have funds with which to secure a residence elsewhere.

Condonation, as defined in

Chester

v.

Chester,

76 Cal. App.2d 265, 269 [172 P.2d 924], is the conditional forgiveness of a matrimonial offense constituting a clear cause of divorce. In

Estate af Abila,