Bensen v. Bensen

BURNETT, J.

This was a suit for divorce, plaintiff claiming it on the ground of cruelty and defendant, in his cross-complaint, asking for a decree of divorce on the ground of desertion.

The court found as follows:

‘ ‘

That the allegations and averments of plaintiff’s complaint have not been proved; that the allegations and averments of defendant’s cross-complaint have not been proved; that there are three children, issue of this marriage named, respectively, Alice, Berger, and Chester, and that it is for the best interests of said children that plaintiff have their custody. As a conclusion of law from the foregoing facts, the court finds that neither plaintiff nor defendant is entitled to a divorce herein; that plaintiff is entitled to the care and custody and control of said children and all of them; that said plaintiff is entitled to permanent alimony in the sum of twenty dollars per month beginning on the first day of July, 1911, for the care of said children; that said plaintiff is entitled to the sum of seventy-five dollars as and for counsel fees herein which shall be due and payable on the first day of July, 1911; that the community property or homestead shall remain as it is,’ it being understood that plaintiff shall collect and receive the rentsi and profits thereof until its future disposition by mutual agreement of the parties hereto, or otherwise; and it. is hereby ordered that judgment be entered accordingly.”

We think it is quite apparent that the findings of fact are utterly insufficient to support the judgment except that portion of it which denies a divorce to each of the parties. No fact is found that would justify the inference that it is for the best interests of the children that their custody be awarded to the mother. Indeed, considering the general findings of fact in connection with the specific allegations of the complaint and cross-complaint, we have the conclusion of the court that both plaintiff and defendant are “fit” and also “not fit” persons to have the custody of said children. Likewise, it may be said that there is no necessity or justification shown for the provision in reference to the alimony, court fees

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or homestead. In fact, we are left completely in the dark as to whether the parties are living together or separate, what their financial condition is, whether there is any community or separate property, whether a homestead exists or what may be the capacity or needs of either party. There is no sufficient reason disclosed, therefore, for the application of section 136 or 137 of the Civil Code. The decisions of our supreme court make this plain.