Miller v. Miller

NOURSE, J.

Plaintiff sued for separate maintenance, setting forth two causes of action, one based upon the defendant’s desertion and the other based upon the defendant’s cruelty. The defendant answered and filed a cross-complaint for divorce, charging the plaintiff with cruelty. The trial court found in favor of the plaintiff upon her first cause of action—desertion—and awarded her alimony in the sum of one thousand dollars a year and also awarded to her a one-half interest in the community property. At the same time the defendant was denied any relief upon his cross-complaint. He now appeals from the judgment and from the order denying his motion for a new trial, and the appeal is presented upon a record prepared under the provisions of section 953a of the Code of Civil Procedure:

The first point raised by the appellant is that the trial court erred in denying his motion for a new trial because the findings were incomplete and because the trial court failed to find on material issues. This is all that is said in regard to the point raised. The appellant has not pointed out in what respect the findings are incomplete or what material issues have not been covered by the findings made or wherein any of these claimed defects have been to his prejudice. Objections raised in this manner do not require consideration.

(People

v.

McLean,

135 Cal. 306, 309 [67 Pac. 770];

People

v.

Cebulla,

137 Cal. 314, 315 [70 Pac. 181].)

[616]

The second point raised is that the evidence does not support the finding of the trial court adverse to the appellant’s allegations of cruelty found in his cross-complaint. The appellant alleged that during the entire married life of the parties respondent had inflicted upon him great mental pain and suffering due to certain specified acts of alleged misconduct. The bulk of the evidence offered in support of these allegations covered quarrels between the parties occurring some nine or ten years prior to the trial of the action and all prior to two distinct acts of reconciliation and forgiveness on the part of both parties. Those acts which were specified in the cross-complaint as having occurred within the statutory period were either unsupported by any competent evidence or were of such a trivial character as to have been entirely overlooked during the course of the trial. In addition to this all the testimony covering these specifications of cruelty was in wide conflict with the accusations on the part of the husband, being either positively denied or explained away by the testimony offered by the wife. For these reasons the finding of the trial court is not subject to attack on this appeal.