Branham v. Branham

NOURSE, J.

This is an appeal from an interlocutory decree of divorce granted on the ground of the defendant’s desertion.

Plaintiff commenced the action for a divorce on two grounds, desertion and cruelty. Defendant filed a cross-complaint charging cruelty on the part of plaintiff and praying for a denial of the divorce and for separate maintenance. The trial court found in accordance with the allegations of the first cause of action set forth in plaintiff’s complaint that the defendant “without cause and against the wish of plaintiff willfully deserted and abandoned plaintiff,” and that the plaintiff was justified in going to Sacramento during the month of March, 1919, in the pursuit of necessary employment and a livelihood for himself and defendant, and that defendant’s refusal to accompany plaintiff to Sacramento or to join him there was without just cause. No finding was made covering the second cause of action of plaintiff’s complaint which alleged cruelty on the part of defendant. As to the cross-complaint of defendant the trial court found that all the allegations were untrue. As conclusions of law it was found that it was impractical to make a division of the community property of the parties, and the whole thereof was accordingly awarded to the plaintiff,

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while the defendant was awarded $125 a month as alimony for the period of two years and thereafter the sum of $100 per month. This community property consisted of an automobile of the value of $1,000 and 920 shares of stock in the Anderson Printing Company of Sacramento of the value of ‘between $9,000 and $10,000, which, however, was hypothecated as security for the corporation’s note upon which a balance of $3,300" was due.

The defendant appealed from this decree after a denial of her motion for a new trial and has brought up a record under section 953a of the Code of Civil Procedure.

The appellant has assigned as errors the insufficiency of the evidence to support the decree on grounds of desertion; the award of all the community property to respondent; the failure to award to the appellant her separate property; the failure to find as to the residence of the respondent; and the failure to make a specific finding as to the particular facts manifesting the desertion charged to the appellant. It is necessary to consider the first assignment only as the objections to the findings, or want of findings, in other particulars are not likely to occur on a new trial.