Booth v. Booth

BURROUGHS, J.,

pro

tem.

Plaintiff, Charles Stuart Booth, and defendant, Lola Warrington Booth, are husband and wife. Plaintiff commenced this action for divorce. The defendant asked for separate maintenance. The court denied the divorce and granted the defendant separate maintenance in the sum of $125 per month. The plaintiff appeals from the judgment. He does not complain of the judgment in so far as it denies him a divorce, but only that portion thereof granting the defendant separate maintenance.

The record discloses the following facts: The complaint alleges a cause of action on the ground of extreme cruelty. The answer denies the allegations of cruelty and by a cross-complaint the defendant also alleges extreme cruelty and asks for separate maintenance only. The answer to the cross-complaint denies the alleged cruelty and on the issues thus framed the cause was tried by the court, findings of fact and conclusions of law made and filed, and the judgment complained of was entered. The evidence discloses that the parties are living separate and apart and the conclusion is amply justified from both the evidence and the findings that such separation was without the fault of the defendant. Upon sufficient evidence the court found that many of the acts of cruelty set forth in the cross-complaint were true and although there is evidence in the record that said acts caused respondent a great deal of worry and were responsible for her nervous condition and broken health, there is no finding of fact that such acts of cruelty occasioned the cross-complainant either grievous bodily injury or grievous mental suffering. It is claimed by appellant that in the absence of such a finding the record is insufficient to sustain a judgment for divorce and that permanent maintenance can only be granted in those eases where the wife is entitled to .a divorce, or where the facts show wilful desertion or wilful failure to provide for the wife under section 137 of the Civil Code, as amended by Statutes of 1927, page 441. • In support of this claim he cites section

[30]

137 of the Civil Code, which, so far as material to this decision, is as follows: “When the husband or wife wilfully deserts the wife or husband, as the case may be, or when the husband or wife has any cause of action for divorce as provided in section 92 of this code, he or she may, without applying for a divorce, maintain in the superior court an action against her or him for permanent support and maintenance of himself or herself or of himself and children, or of herself and children. When the husband wilfully fails to provide for the wife, she may, without applying for a divorce, maintain in the superior court an action against him for permanent support and maintenance of herself or of herself and children.” It is argued by appellant that as respondent’s cause of action is not based upon wilful desertion or wilful failure to provide, as authorized by the section of the code last cited, she must allege and prove and the court must find in her favor a complete cause of action for divorce as provided in section 92 of the Civil Code. It may be conceded that the cross-complaint is not predicated upon wilful desertion or wilful failure to provide under section 137 of the Civil Code as amended, but that a cause of action on the ground of extreme cruelty under subdivision 2, section 92 of the Civil Code is therein stated and the court having failed to find that the acts of cruelty which were found to be true inflicted either grievous physical injury or grievous mental suffering upon respondent, the findings are insufficient to sustain a judgment of divorce.