Jansen v. Jansen

PARKER, J.,

pro tem.

The purpose of the action was to dissolve the bonds of matrimony theretofore and then existing between the parties. Plaintiff alleged extreme cruelty and failure to provide. Defendant denied the allegations of the complaint, seeking no affirmative relief. Certain allegations were made and denials thereto entered, which went to the character and amount of property held by the parties, of which mention will be made hereinafter. The trial court awarded to plaintiff an interlocutory decree of divorce upon the grounds of extreme cruelty, a nonsuit having been entered on the failure to provide count. The said decree further determined certain property to be community property and divided the same between the parties. After judgment defendant moved for a new trial which was denied. Prior to the hearing of the motion for a new trial and after notice of intention to move for a new trial the plaintiff noticed a motion to award her additional counsel fees to resist the said motion. Counsel fees were awarded plaintiff. Defendant appeals from the judgment and from the order allowing the said counsel fees.

It is first contended by appellant that the evidence is insufficient to uphold the trial court’s conclusion that the defendant was guilty of extreme or any cruelty toward plaintiff. The main ground of this contention is that the charges of the plaintiff lack corroboration. It must be con

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ceded that the testimony of the plaintiff herself shows a continued course of cruelty, aggravated by specific incidents of overt acts of violence and abuse. On this there can be no question, though the appellant in his testimony makes general and specific denial. The contention, however, as stated, is that there is a complete lack of corroboration, and that without corroboration the facts" could not be found. It will be conceded that no divorce.may be granted upon the uncorroborated testimony of either party. (Civ. Code, sec. 130.) Corroboration is rather an elastic term, and whether or not testimony is corroborated depends upon the facts and circumstances of the particular case under discussion. Corroboration may be slight or it may be so compelling as to become actually direct evidence. The law has laid down no standard by which its weight or sufficiency may be gauged. To go into detail of the facts of the instant case would be but an epic of discord and lack of harmony, too often encountered in nearly all cases of this character. The weight of the corroborating testimony was primarily one for the trial court to be determined with reference to the truth or falsity of the main testimony. We have carefully read and re-read the entire transcript of testimony, and while it may be true that the testimony offered as corroborative may support different conclusions or permit varying inferences to be drawn therefrom, yet it does support the inference drawn by the trial court. To repeat, we decline to analyze the testimony offered, upon the grounds that to do so would be to invade, to some extent, the province of the trial court and would make only more confusing the trial practice. If it were apparent that the corroborating testimony was in no sense corroborative or that it was not corroborative of jurisdictional facts or of facts necessary to a judgment, our course would naturally be different. But as a rule of law and appellate practice we must decline to set up what might be classed as a standard of corroborative sufficiency in the absence of a necessity therefor. We find sufficient evidence from which the trial court might conclude as it did and there our inquiry rests.