Stitt v. Stitt

WASTE, G. J.

This action was brought by plaintiff Julia Louise Stitt against her husband, Corwin J. Stitt, charging cruelty and seeking separate maintenance for herself and three minor children of the marriage. Issue was joined by defendant and the cause went to trial. The trial court found the material allegations of plaintiff’s complaint to be true and gave judgment that she have custody of the minor children with right of reasonable visitation by defendant; that she be awarded, from the community assets, the family home and furnishings; and that defendant pay, through a court trustee, for her support and that of the three children, the sum of $60 a month, together with attorney’s fees and costs. From said judgment, defendant appealed on the judgment roll and the cause is now before this court on motion of plaintiff to dismiss the appeal or affirm the judgment.

No substantial question is raised by the appeal. Appellant’s nine-page opening brief states five quest ions, but argues only three of them, and of the three, one was completely

[452]

answered when this court ordered a diminution of record on February 13, 1936

(Stitt

v.

Stitt,

5 Cal. (2d) 329 [54 Pac. (2d) 460]), correcting the findings as to two typographical errors in Roman numerals referring to paragraphs of pleadings found to be true or untrue. As to the second point, under the allegations of plaintiff’s complaint, with its prayer for support and maintenance, for costs, for an order restraining dissipation of. assets by defendant, and for general relief, it was proper for the court to make the aforesaid award of community property to plaintiff.

(D’Arcy

v.

D’Arcy,

89 Cal. App. 86 [264 Pac. 497].)

This brings- us to the third and last point. The complaint, for purposes of the state bureau of vital statistics as required by section 426a of the Code of Civil Procedure, set forth the date of marriage of the parties, November 15, 1920, and the date of separation as “on or about the 1st day of July, 1934”. The four acts of cruelty charged took place in August, October, and November, 1934. Appellant contends that where a complaint alleges a separation, without allegation as to whether it was justified or unjustified, and acts of cruelty committed subsequent thereto, it fails to state a cause of action for separate maintenance.