Albert v. Albert

DOOLING, J.,

pro tem.

In this appeal from an interlocutory decree of divorce granted on the ground of defendant ’s wilful desertion, two points are urged for reversal: 1. That there was no proof of the jurisdictional facts of plaintiff’s residence in the state and the county in which the action was commenced and, 2. That there was not sufficient corroboration of plaintiff’s evidence of defendant’s desertion.

The jurisdictional facts of plaintiff’s residence were alleged in the complaint and these allegations were not denied in the answer. This, under the settled rule, did-not dispense with proof of these allegations, but it did lend color to respondent's claim in this court that the failure to offer more definite proof on the subject than appeared in the record was due to respondent’s oversight. Respondent made a motion to take additional testimony in support of the finding of residence which this court granted. (Code Civ. Proc., sec. 956a.) This evidence is now before us and' shows without conflict that respondent was a resident of the state of California and the county of San Bernardino at the time this action was commenced by him in that county and for many years continuously prior thereto.

Appellant’s claim that there was not sufficient corroboration of the fact of appellant’s desertion requires a consideration of the evidence offered by respondent on that subject. Preliminary to that» examination it is proper to state that the evidence on that subject was sharply in conflict, the proof offered by appellant being amply sufficient, if believed by the trial court, to establish the fact that respondent deserted appellant by refusing to permit her to return to his home after she had paid a visit to her brother. With such conflict this court cannot concern itself. ‘ ‘ Appellate courts are powerless to interfere with the findings of fact where the evidence is conflicting. This rule applies to divorce cases as well as to any other with the single exception that before a divorce can be granted the testimony of the plaintiff must be corroborated.”

(Percy

v.

Percy,

188 Cal. 765, 767 [207 Pac. 369].) We shall accord

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