Thompson v. Thompson

VAN DYKE, P. J.

This is an appeal from an interlocutory decree of divorce granted the respondent husband on the ground of adultery and awarding each of the parties certain community property.

The parties intermarried on May 17, 1942, and separated on June 1, 1953. Shortly thereafter the respondent husband commenced the present action, wherein the appellant wife cross-complained, praying for a divorce and an equitable division of the community property. The appellant does not challenge the sufficiency of the evidence to support the trial court’s finding that she was guilty of extreme cruelty and adultery. In fact, she admitted that during the period of the marriage she had sexual intercourse on numerous occasions with four different men and that this was without the knowledge or connivance of the respondent. However, she contends that, since the trial court found that the respondent was guilty of extreme cruelty, she, as well as he, was entitled to a divorce. Such is not the law. Under the circumstances, it was for the trial court to determine whether or not either or both of the parties should be granted a divorce.

[541]

(De

Burgh

v.

De Burgh,

39 Cal.2d 858, 873 [250 P.2d 598] ;

Phillips

v.

Phillips,

41 Cal.2d 869, 877 [264 P.2d 926] ;

Mueller

v.

Mueller,

44 Cal.2d 527 [282 P.2d 869];

Gilmore

v.

Gilmore,

45 Cal.2d 142, 148-149 [287 P.2d 769].) The trial court concluded that the legitimate objects of matrimony had been destroyed, that the marital misconduct of the appellant far exceeded that of respondent, and that respondent’s cruelty did not establish recrimination nor bar his right to an interlocutory decree of divorce on the ground of adultery. Therefore, respondent was granted, and appellant denied, a divorce. By such action the trial court impliedly found either that much of the complained of conduct of respondent was provoked by appellant or that appellant’s flagrant flouting of her marriage vows constituted a bar to her cause of action for divorce predicated upon respondent’s extreme cruelty. It was within the province of the trial court to so find and its determination as to the comparative guilt of the parties cannot be disturbed on appeal.