Woodworth v. Woodworth

HERNDON, J.

Plaintiff appeals from the judgment denying him the divorce he sought by reason of the acts of mental cruelty committed by his wife. Plaintiff’s complaint alleged that the parties had married in Carson City, Nevada, on February 12, 1964, and separated two months later on April 13, 1964. They had acquired no community property and there were no children the issue of their marriage. Service of summons in the action was by way of publication, since the last communication plaintiff had received from defendant was a letter on which she had written the return address “Gen. Delivery, Palm Springs, Calif.” No answer to the complaint was filed and defendant’s default was duly entered.

At the trial, plaintiff testified that during the extremely short duration of their marriage, defendant had left him three

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times stating on each occasion that she did not love him. After her last departure she telephoned him and wrote him two letters, in each instance expressing her desire to terminate the marriage. These letters were introduced into evidence.

In her first letter dated April 22, 1964, defendant commented upon the fact that plaintiff “didn’t seem anxious” to obtain a divorce and she therefore threatened to file a separate maintenance suit against him in which she would seek $200 per month alimony. In her second letter dated May 4, 1964, defendant had written:

“I talked to Mother on the phone yesterday, and she said you had called her several times. As I ask before, I really wish you wouldn’t keep calling her, because it just makes her worry more about everything, and she really doesn’t know any more than you do. . . . Frank, I think it would do you good to go back to Denver or Kansas City for awhile, where you could run around with Cecil & your old friends. You know down deep that it just isn’t going to work out with us, so why make matters worse than they already are. You know I want a divorce, but, you say you won’t get it, and you know I sure don’t have any money to pay for it, so guess we will either have to have a separate maintenance like I mentioned in my other letter, or else I will have to wait until you want it bad enough to get it.”

One witness called by plaintiff testified that she had known him for five years and that he had resided continuously in Los Angeles County for one year preceding the filing of the instant action. She also testified that he had shown her the letters he had received from his wife and that she had observed that he ‘ ‘was unhappy, very despondent. ’’