Muther v. Muther

VAN DYKE, J.

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This is an appeal from an interlocutory decree of divorce. By plaintiff’s complaint the court was requested to grant her an interlocutory decree of divorce from her husband upon the ground of extreme cruelty. The court was further requested to declare that a property settlement agreement theretofore executed between the parties had been abrogated by the parties upon a reconciliation, and, finally, the court was requested to divide the community property between the parties and to award to the wife the custody of the three minor children of the parties.

The husband denied generally the respondent’s allegations of cruelty and cross-complained, asking that the divorce be granted to him. He denied that the property settlement agreement had ever been abrogated. After a trial the court granted the wife an interlocutory decree, declared that the property settlement had been abrogated and that the property the parties held was community.

Appellant first urges that the court erred in granting a divorce to respondent wife because there was no independent testimony corroborating the jurisdictional requirement

[780]

of residence. Respondent testified that she had been a resident of Sacramento County, wherein the action was filed, for more than a year prior to the filing thereof, but the corroborating testimony was circumstantial rather than direct and apparently it was so through oversight of counsel. However, we think that the circumstantial evidence was sufficient to corroborate the testimony of respondent, particularly in view of the fact that appellant admitted the jurisdictional requirements of respondent in his answer to the complaint. Corroborative evidence was as follows: A Mrs. Pemberton testified that she was the housekeeper and took care of the Muther children for the period of'time from the last week in February until the last day of December 1959, and that the husband and wife were living in Sacramento County. A Mrs. Holmes testified that she stayed at the home of the wife in Oroville before the family moved to Sacramento County in November 1957, and that she stayed with the wife in her Sacramento home until February 1958. There was in evidence a withholding tax statement for the wife for the year 1960, showing that her employer was' Sacramento County and during that year her total wages were $6,756.94. We think the foregoing was sufficient to support the court’s findings upon the point of jurisdiction. While it is true that the pleaded admission of the necessary residence in Sacramento County would not satisfy the necessity for proof of the jurisdictional residential requirement, nevertheless it is a fair inference from the foregoing circumstantial proof that the husband and wife were living .in Sacramento County for a period of time greater than that necessary to satisfy the jurisdictional requirement.