Davis v. Davis

CONREY, P. J.

In this action the plaintiff obtained a decree against her husband, the defendant, whereby the defendant is ordered to pay to the plaintiff as separate maintenance for her support the sum of fifty dollars per month. By the same decree, the court awarded to the plaintiff certain community property consisting of a house and lot described in the complaint and in the decree.

The complaint stated facts showing that the defendant had been guilty of extreme cruelty toward the plaintiff,

[500]

and that at a date about two months prior to the commencement of this action, and at all times thereafter, defendant willfully and without cause deserted and abandoned the plaintiff. The complaint did not make any definite statement concerning the income or earning capacity of the defendant, other than that during the immediately preceding two years “defendant has been working as a plumber.” And the complaint contained no allegation concerning the necessities of the plaintiff or the amount necessary for her support; although it was stated that the alleged acts of the defendant inflicted upon the plaintiff grievous bodily injury and grievous mental suffering, and that her health had been greatly impaired thereby. Basing her claim upon the facts above stated, plaintiff in her complaint asked “that she be awarded a permanent support of sufficient amount to support herself,” and that the community property be assigned to the respective parties in such proportion as the court should find to be just. Summons and complaint were duly served upon the defendant personally. As he did not appear to defend, his default was entered, and the court proceeded to hear and determine the matter. Thereupon judgment awarding separate maintenance was entered as hereinabove stated. The defendant now appeals from the judgment.

The points presented in support of the appeal are that the complaint is fatally defective in that it contained no allegation showing the necessity for plaintiff to receive from defendant any sum whatsoever for her maintenance; that the defendant by his default admitted nothing more than the facts alleged in the complaint; that the judgment is erroneous in that it makes an allowance for attorneys’ fees. As to the last point, it does not appear that such allowance was made by the judgment.