Tomaier v. Tomaier

SCHOTTKY, J. pro tem.

Appellant wife appeals from a judgment granting respondent husband a divorce upon the ground of extreme cruelty, and making a division of the property of the parties. Appellant contends that the evidence is insufficient to support the finding of cruelty on her part, and that she was entitled to a divorce on her cross-complaint on the ground of desertion.

No useful purpose would be served by setting forth the somewhat sordid evidence in the case on the charges of cruelty and on the counter charge of desertion. No hard and fast rule of law can be laid down as to what particular facts must be proved in order to justify a finding that a spouse has undergone grievous mental suffering. A correct decision must depend upon the sound sense and judgment of the trial court. Therefore, in the case at bar, whether or not the acts and conduct of appellant inflicted grievous mental suffering upon respondent was a question of fact for the determination of the trial court from all the facts and circumstances in the case

(Barnes

v.

Barnes,

95 Cal. 171 [30

[518]

Pac. 298, 16 L. R. A. 660] ;

Hansen

v.

Hansen,

86 Cal. App. 744 [261 Pac. 503] ;

Shaw

v.

Shaw,

122 Cal. App. 172 [9 Pac. (2d) 876]) and a careful reading of the entire record convinces us that there is ample evidence to support the conclusion that respondent was entitled to a divorce upon the ground of extreme cruelty.

The trial court found that respondent and appellant were the owners of the following property: Parcel 1. Lots 17 to 21, in Block 99, in the town of Mojave, leased to the Safeway Company and subject to an encumbrance in the sum of $5,000.00. Parcel 2. A residence in Kansas City, Missouri. Parcel 3. Money in escrow in the Bank of America, being the proceeds from the sale of Lot 5, Block 100, in the town of Mojave. Parcel 4. A Dodge, 1939 automobile coupe, house trailer, household furniture and furnishings in possession of respondent at Mojave.