Hawkins v. Hawkins

THOMPSON (R. L.), J.

The plaintiff was awarded a decree of divorce from the defendant on the ground of extreme cruelty. She was also given the custody of their two minor children. The answer alleged condonation as a special defense, upon which issue the court failed to adopt a finding. This is assigned as a ground for reversal. The appellant also contends that the court's finding that he had denied the paternity of one of his children is not supported by the evidence, for the reason that it lacks corroboration.

It is not contended that other acts of cruelty are not amply supported by the evidence. It is not necessary that all the alleged acts of cruelty shall be corroborated or even proved. It is enough if the facts which are corroborated fulfill the definition of extreme cruelty as it appears in section 94 of the Civil Code and justify the entry of a decree of divorce on that ground. Other findings may be disregarded as surplusage.

(Avery

v.

Avery,

148 Cal. 239 [82 Pac. 967];

Hansen

v.

Hansen,

86 Cal. App. 744 [261 Pac. 503]; 19 C. J. 134, sec. 349; 9 R. C. L. 436, sec. 240.)

Upon the question of condonation, the evidence is practically undisputed. On account of acts of alleged cruelty on the part of appellant the spouses were separated. Their home in Sonora was no longer maintained. The respondent was living in Oakland and was training to learn the art of hair dressing. Five days before the complaint in this action was filed the appellant visited his wife in Oakland and claims that a reconciliation was then reached and that she condoned the alleged charges of cruelty. All that the record shows in this regard is that he visited his wife at the home of her sister in Berkeley and discussed their family affairs. He said: “We talked about the children, the home and where we would live. She said: For the sake of the children I’ll try it,’ and she agreed to return.” That.

[611]