Danielson v. Danielson

HOLLZER, J., pro tem.

This is an action for divorce. The trial court granted the husband, who is the defendant herein, a decree of divorce on the ground of desertion. Plaintiff appeals, claiming that the evidence is insufficient to sustain such decree.

The gist of plaintiff’s contention is that the finding of desertion rests wholly upon her alleged refusal to reside in the home selected by the defendant. As to such finding, it is insisted that there is no evidence showing that the defendant had actually selected some particular place as the home, or that he had offered a definite home to her and requested her to follow him, or that such home was a reasonable place of abode.

Appellant argues that in the absence of such a showing she could not be found guilty of desertion. The ease of

[169]

Bibb

v.

Bibb,

39 Cal. App. 406 [179 Pac. 214], is cited in support of appellant’s position.

The answer to appellant’s contention lies in the fact that neither the pleadings nor the decree herein restrict the case to so narrow an issue. The cross-complaint upon which the decree was granted, in addition to setting forth the necessary statistical facts, alleges in paragraph Y: “ That on or about the 21st day of February, 1924, the cross-defendant, Carrie Danielson, disregarding the solemnity of her marriage vow, wilfully and without cause, deserted and abandoned the cross-complainant, and ever since has, and still continues to, so wilfully and without cause desert and abandon said cross-complainant, and to live separate and apart from him, without any sufficient cause or any reason, and against his will and without his consent.” The trial court found that the allegations of the complaint were not true, and that the allegations of the cross-complaint were true.

The record on this appeal was prepared under what is known as the alternative method. Although the reporter’s transcript contains many pages of testimony relating to the issue of desertion, only the most meager excerpts of the evidence pertaining to the same are to be found in appellant’s brief.

Our examination of the record discloses testimony tending to prove the following facts: Defendant was in the oil business, and for many years maintained his headquarters at Bakersfield. For the period of about eight years prior to 1920 plaintiff had resided with her husband in Bakersfield during the winter months. Thereafter she resided in Los Angeles, where defendant visited her from time to time. In February, 1924, the husband, being dissatisfied with this arrangement, had a conversation with his wife wherein he requested her to make her home with him in Bakersfield. Plaintiff declined to do so, claiming that she was in poor health and that it would be injurious for her to move to Bakersfield. In this same conversation, according to the defendant, his wife informed him that she did not want him as a husband, that there were other people who meant more to her. On the evening following this conversation the husband discovered his wife at a public dance-hall accompanied by a man in no way related to her and who was a