Levingston v. Levingston

STURTEVANT, J.

The plaintiff commenced an action against the defendant for separate maintenance. Therein she alleged cruelty on the part of the defendant. The defendant interposed an answer in which he denied the allegations of plaintiff’s complaint and he also set up a cross-complaint alleging in one count plaintiff’s desertion of bim and in another count the extreme cruelty of the plaintiff. The plaintiff answered the cross-complaint and the action was tried before the trial court sitting without a jury. The trial court made findings in favor of the defendant and

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frbm an interlocutory decree based thereon the plaintiff has appealed and has brought up a typewritten record.

The plaintiff makes one point—there was no sufficient evidence or corroboration of the charge of desertion upon which the decree was rendered. From the record it appears that the plaintiff and defendant intermarried at Denver, Colorado, February 20, 1901. They lived together until June 5, 1924. On that date they separated and since then they have lived separate and apart. The wife has lived continuously in New York City and the husband has lived continuously in the western states. At the time of the separation the defendant was conducting a hotel at Waterloo in the state of Iowa. Shortly after the separation he sold out and came to California and purchased the Hotel Vendóme in San Jose. Afterward business compelled him to sell out and he made a sale on such terms that he had little or nothing left. A short time before the separation the plaintiff suspected' that the defendant was committing acts of infidelity. The particular act arose some weeks prior to the separation. However, at that time one of the sons was in high school. The plaintiff waited until he finished his course and in June, 1924, she and two sons left for New York. The evidence is conflicting as to what eon-' versations occurred between the two parties immediately before her departure. The plaintiff contends that she was waiting to be asked not to go. The defendant contends that he frequently asked her not to go but nevertheless she proceeded to make her arrangements to depart. While those arrangements were progressing the defendant says that she asked him whether he would make any remittances and that he made the reply that he wished she would not go but if she was determined to go that he would make remittances. He, continued to make remittances of $200 per month until his business failed. When he ceased to make remittances certain conferences between the attorneys of the respective parties were held. Those conferences led to nothing and this action was commenced. There is no conflict in the evidence regarding the fact that the • plaintiff sent for packers and had her personal belongings packed and shipped to New York; that at the same time the plaintiff and two sons left the family dwelling place; that when they left the defendant went with them to the depot and