Hager v. Hager

California Court of Appeal Oct 19, 1959 No. Civ. 23606Published

Before: Shinn

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Holding. The court affirmed the divorce decree, holding that the evidence supported the finding of desertion and that the defense of unreasonable delay was waived because it was not properly pleaded or raised at trial.

Issues

Whether the evidence was sufficient to support a finding of desertion.
Whether the action for divorce was barred by an unreasonable lapse of time.
Whether a party who fails to file a cross-appeal can challenge a portion of the judgment on appeal.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The evidence was legally sufficient to support the finding that Blanche was guilty of desertion.”

“Mere lapse of time is not of itself a bar to an action for divorce.”

“We do not consider it to be the duty of this court to reverse the judgment for the sole purpose of the trial of an issue of fact respecting a defense to the action which the defendant had a full opportunity to present at the trial”

SHINN, P. J.

Dewey Hager sued his wife, Blanche, for divorce upon the grounds of cruelty and desertion and Blanche cross-complained for separate maintenance, charging cruelty and adultery. Blanche was found guilty of desertion and Dewey was found not guilty of cruelty or adultery; the court awarded Dewey a divorce and Blanche $69 per month for support until the further order of the court. Blanche appealed ; Dewey did not.

The contentions on appeal are that there was insufficient evidence to support the finding that Blanche was guilty of desertion and that Dewey did not sue within a reasonable time.

There was evidence of the following facts: The parties married in 1919 and separated in 1931. At that time they had two minor children. During the era of prohibition Dewey was a bootlegger. After an absence from home of 14 days he had spent in jail for possession of a gallon of whiskey, Dewey returned home and found himself to be unwelcome. He left and went to live with a friend. Occasionally he came back to visit the children. He testified: “She [Blanche] said to keep away from there. . . . [She] didn’t want me around; just to send the money and don’t come around bothering. ... I don’t want

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no man. I don’t want you around. Just give me the money.” Dewey was ready to reconcile but that was before he “took up with Frances Mapes.” Commencing in 1934 Dewey and Frances lived as husband and wife but there was no evidence that they planned marriage. Dewey continued his bootlegging and eventually became physically disabled, as a result of which he is in receipt of two pensions. Blanche testified to a different cause for the separation; Dewey could have remained if he had been willing to give up bootlegging, but he refused to change his ways. Daisy Spencer, Dewey’s sister, testified that she visited the Hagers on several occasions between 1928 and 1934; she heard Blanche tell Dewey “She didn’t want to live with him, that he was a disgrace to her and the children by drinking or selling liquor.” If the court had found that the cause of the separation was Dewey’s unwillingness to allow home life to interfere with his career as a bootlegger, it would have been difficult for us to understand how Blanche could be found guilty of desertion, but there was no such finding and we must presume that the court found that Dewey was

Hager v. Hager

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SHINN, P. J.

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