Morgan v. Superior Court

NOURSE, J. pro tem.

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Petitioner is the plaintiff in an action for divorce commenced by her on August 1, 1958, against her husband Frederick J. Morgan, the real party in interest herein. She here seeks a writ of mandate to compel the respondent court to permit her to file in the divorce action an amendment to her complaint setting forth an additional cause of action by which she would allege as a grounds for divorce adultery committed by the defendant with a named corespondent.

The relevant facts: The original complaint for divorce filed by the petitioner set forth but one cause of action in which the defendant was charged with extreme cruelty. At the time of filing this complaint she had reason to believe that the defendant had committed adultery but did not have positive proof thereof. After the complaint was filed, extended negotiations took place between petitioner’s counsel and counsel for her husband directed to the question of a property settlement, alimony and child support. The parties have four minor children. During these negotiations she obtained what she deemed to be positive proof of the adultery and advised her counsel thereof but further advised him that in the interest of her children and family name she did not desire to amend her complaint until it became evident "that a contested action for divorce and for- adjudication of property rights could not be avoided.

[529]

Upon it becoming evident that a satisfactory agreement could not be arrived at with her husband she directed her counsel to file an amended complaint charging adultery. Counsel for petitioner then sought the consent of the husband’s counsel to the filing of such an amendment. This being refused, he filed a notice of motion to amend attaching thereto a copy of the proposed amendment. This motion was based upon the affidavit of Mr. Butterworth, one of petitioner’s attorneys of record and upon her own affidavit.

In substance the affidavit of Mr. Butterworth states that subsequent to the filing of the complaint the plaintiff obtained evidence of the fact that the defendant had committed adultery with the named corespondent; that the charge of adultery set forth in the proposed amended complaint was set forth in good faith upon the belief that it could be sustained at the time of the trial in every particular and that in his opinion the amendment was necessary in order to properly protect the rights of the plaintiff.