Moffitt v. Moffitt

VAN ZANTE, J.,

pro

tem.

This is an appeal by defendant Arthur C. Moffitt from a judgment granting plaintiff Martha Moffitt a decree of separate maintenance, without divorce, on the ground of desertion. These parties intermarried May 10, 1885, and resided together in the state of Indiana for a period of approximately twenty years, or until about the twenty-sixth day of March, 1904, when defendant, with another woman, and without the knowledge or consent of plaintiff, came to- California and lived in this state under the assumed name of C. A. Maple. Here he accumulated considerable property.

In the year 1909, plaintiff came to California and apparently quite by accident discovered defendant’s whereabouts in Los Angeles. She visited his home where he was living with the other woman as husband and wife under the assumed name. Some steps were taken looking toward a reconciliation between the husband and wife but during this same year defendant left Los Angeles and California and lived for a time in the state of Washington. For a period of less than a year he sent plaintiff several letters and some money. Then communication between the parties ceased until in 1927. In the interim plaintiff returned to

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her home in Indiana but again came to California in 1924. In the year 1927 she again discovered defendant living with the same woman under the assumed name in Los Angeles. He again gave her some money but no further steps were taken looking to a reconciliation. During all the time from 1904 to 1927, except for the period of less than one year when defendant was in the state of Washington, plaintiff was more or less diligently searching for defendant. The plaintiff in part earned a living by doing menial labor and in part was dependent for support on the charity of friends. However, she did own some property in Indiana. This was encumbered and she had been unable to sell it.

Defendant contends that the judgment awarding plaintiff separate maintenance should be reversed on the following grounds: First, that no' findings were made; and, second, that plaintiff was guilty of laches. As to the first ground, since the defendant filed his notice of appeal, the plaintiff, on a showing made before the trial court on the twenty-first day of October, 1930, obtained the following minute order: “J. E. Wilder appearing as attorney for plaintiff and J. E. Light for defendant. It appearing to the Court that the Findings of Fact and Conclusions of Law signed and filed May 29, 1930, have been lost and after diligent search, have not been found; now upon motion of the plaintiff, it is ordered that a copy thereof, which the Court has duly signed and ordered filed this day, be and . the same is hereby substituted in the record as of the original date for the said lost Findings of Fact and Conclusions of Law.”