Brooks v. Brooks

California Court of Appeal Jun 29, 1942 No. Civ. 13673Published

Before: York

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Holding. The court held that a spouse's filing of a divorce action based on cruelty constitutes an assent to the separation, thereby precluding the necessary element of non-consent required to establish a cause of action for desertion. Consequently, the interlocutory decree of divorce granted on the ground of desertion was reversed.

Issues

Whether the filing of a divorce complaint for cruelty constitutes consent to a separation, defeating a subsequent claim for divorce based on desertion.
Whether the one-year period of desertion can include time during which a divorce action is pending between the parties.

Disposition. Reversed in part and dismissed in part.

Quotations verified verbatim against the opinion

“his action for absolute divorce on ths ground of cruelty which he filed on July 22, 1940, “was in effect an assent to the separation and an expression of [his] desire to terminate the marriage as of that date:”

“As result, an essential element of a cause of divorce on the ground of desertion is lacking, to-wit: Continuous absence for one year without the consent of the spouse seeking the decree.”

“That portion of the interlocutory decree granting to respondent husband a divorce on the ground of desertion is reversed.”

YORK, P. J.

Plaintiff and defendant intermarried on September 29, 1936, and separated on or about June 28,1940, there being no children of the union.

On July 22, 1940, plaintiff husband filed his complaint for

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divorce alleging extreme cruelty as the ground therefor, to which defendant wife’s demurrer was sustained, and on August 16, 1940, husband filed his amended complaint in which he more specifically alleged the acts of cruelty on the part of defendant wife. On February 4, 1941, defendant filed her cross-complaint and on March 14, 1941, her supplemental cross-complaint for divorce both of which alleged cruelty on the part of the plaintiff and cross-defendant husband.

The cause came on for trial on August 1, 2 and 4,-1941, and upon the conclusion of the introduction of evidence, plaintiff husband made a motion in open court for leave to file a supplemental amended complaint to conform to proof, alleging a cause of action for divorce on the ground of wilful desertion by defendant wife. This motion was granted, service of a copy of said supplemental amended complaint was made in open court, the original supplemental amended complaint was filed on August 4, 1941, and it was announced by the court that the allegations thereof would be deemed denied. “The parties introduced evidence in support of the allegations of their respective pleadings”; the court made its findings of fact and conclusions of law to the effect that “the plaintiff is entitled to a divorce from the defendant on the ground of wilful desertion,” and on August 26, 1941, an interlocutory decree of divorce was accordingly entered, specifically dividing certain personal property between the parties; ordering the cancellation of a homestead selected by defendant wife from the separate property of plaintiff husband, and ordering plaintiff husband to pay to defendant wife $650 for her support and maintenance in monthly installments of $50 each beginning August 19, 1941. Thereafter, defendant made her motion for a new trial which was by the court denied.

This appeal is prosecuted by defendant wife from that portion of the judgment which grants to plaintiff husband “an interlocutory decree of divorce on the ground of desertion, as well as that part thereof purporting to cancel the homestead and set aside the same to the plaintiff above named. ’ ’

Brooks v. Brooks

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YORK, P. J.

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