Jensen v. Jensen

SHEPARD, J.

This is an appeal from a judgment for divorce in favor of plaintiff.

Pacts

The parties hereto were married December 20, 1952, and finally separated June 21, 1959. There are three children, two being natural issue and one adopted. A prior action for divorce had been filed June 28,1957, but was dismissed shortly thereafter. The plaintiff’s complaint was for divorce on the ground of extreme cruelty, defendant rejoining with a cross-complaint for separate maintenance on the same ground. An amended complaint and cross-complaint were later filed. Each allegation of cruelty was general in form. Plaintiff’s original complaint alleged that the community property consisted of a residence with an encumbrance of $17,000 to plaintiff's parents and an equity of $3,500, house furnishings, two automobiles, bank accounts and a promissory note secured by a trust deed. By her answer, defendant admitted the community character of the property but denied the encumbrance. By her cross-complaint she alleged the community character of the property described in plaintiff’s complaint. By the pre

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trial order the property was noted to be community and no issue was presented except its determination and disposition. Three months after the filing of the pretrial order, plaintiff filed an amended complaint alleging,

inter alia,

substantially the same community property except that he alleged that the residence was in joint tenancy subject to the encumbrance above mentioned. Defendant in her answer to the amended complaint denied the joint tenancy character of the title in the residence and filed a new cross-complaint, again alleging the residence to be community property. During the trial defendant continued to contend that the residence was community property and produced some testimony to support her contention.

The evidence relating to extreme cruelty was in conflict. There was evidence of various activities by defendant, including frequent absences from home and conduct with other men which might or might not have been excusable, depending on the point of view taken by the judge of the veracity of the witnesses. No good purpose will be served by recounting the various versions of these witnesses. The trial court found plaintiff’s allegations of extreme cruelty to be true and defendant’s allegations of cruelty to be untrue. It found all the property to be community property except the balance due on a certain contract of sale acquired by plaintiff prior to the marriage of the parties. It awarded to the defendant the household furniture, the savings account of $128.78, the trust funds of $125, the note and deed of trust on the San Mateo property of the value of $6,000, the children’s life insurance, and the 1959 Nash Rambler, and awarded to plaintiff the other community property, imposing upon him the duty to pay off the $17,000 obligation on the residence. It awarded custody of the minor children to defendant and ordered plaintiff to pay $85 per month to defendant for the support of each of said children, or a total of $255 per month.