Koenigstein v. Koenigstein

CRAIG, J.

In this action the plaintiff sought a divorce. The defendant answered and filed a cross-complaint for separate maintenance. The cross-complaint alleged habitual intemperance and adultery on the part of plaintiff. The ease was tried and the court gave judgment against the plaintiff and in favor of the defendant. The court found both the allegations of adultery and habitual intemperance to be true. The grounds of the appeal are that the evidence does not support certain findings.

Finding VI is as follows: “That plaintiff, at divers times, did commit adultery with one Rose L. Geist Lee, formerly Rose L. Geist, at the city of Norfolk, Nebraska, and elsewhere ; that each and all of said acts of adultery were committed without the consent, connivance, procurement, or previous knowledge of defendant, and that defendant has not lived or cohabited with plaintiff since she became cognizant of the commission by plaintiff of the said several acts of adultery.”

In the case of

Goldsmith

v.

Goldsmith,

26 Cal. App. 458, [147 Pac. 2141, cited by appellant, it was held that the evidence was insufficient to support a finding of adultery. In that case the entire evidence concerning that matter was contained in certain letters written by defendant to a man named Gordon.

[1]

The decision is expressly based upon

[675]

the provisions of our Civil Code, section 130, and our Code of Civil Procedure, section 2079, to the effect that a decree of divorce cannot be based upon the uncorroborated statements, admissions, and testimony of the parties to the action. These sections apply to divorce cases only and the case is, therefore, not in point in this action for separate maintenance.

[2]

With reference to the degree of proof required to establish adultery, we may quote the language of the court in

Hartshorn