Bragg v. Bragg

NOURSE, P. J.

In an action for divorce plaintiff had judgment from which the defendant has appealed citing, among other grounds, that the plaintiff was not a

bona fide

resident of the county in which the proceedings were held and that his testimony concerning acts of cruelty was not corroborated.

The parties were married in 1926. The plaintiff was then seventy-six years of age and defendant was fifty-five. The plaintiff was a widower and had four adult children. The defendant was a widow and had a married daughter. All •maintained their own homes-—the defendant’s daughter in San Mateo County near where the parties lived, the plaintiff’s children each in other counties. On September 14, 1930, the plaintiff left the domicile in Lomita Park, San Mateo County, and informed defendant by letter that he could not live with her longer. She replied in the same manner “your decision suits me perfectly”. Thereafter, on November, 1930, this plaintiff commenced two actions against the defendant—one for divorce, the other for cancellation of deeds on the grounds of fraud. He was nonsuited in the first ease because there was not sufficient corroboration of his testimony. He had judgment in the second case which was reversed on the ground that there was no evidentiary support for the findings and judgment.

(Bragg

v.

Bragg.

219 Cal. 715 [28 Pac. (2d) 1046].) In May, 1934, this action was commenced for separate maintenance. In June follow

[613]

ing, an amended complaint was filed seeking a divorce. In January, 1935, the defendant filed a cross-complaint asking for a divorce, and this was followed by a second amended complaint to which an answer was filed. The cause was heard upon these pleadings and an interlocutory decree was entered February 1, 1937.

The charges of cruelty upon which this decree was ■based covered the same evidentiary matters upon which the fraud action of 1930 was founded and which are outlined in full in the opinion of the Supreme Court reversing the judgment in that action. The answer denied all these charges, and the proof is as unsatisfactory here as it was in the former action, and is without any corroboration when viewed in the light of the former opinion. In addition to these denials the defendant pleaded that the plaintiff had been for many years prior to the filing of the original complaint, and still was, a resident of Santa Clara County.