Gray v. Gray

MARKS, J.

Respondent instituted this action seeking a divorce and maintenance from appellant. He answered and filed a cross-complaint in which he sought a divorce. The complaint alleged wilful neglect and failure to provide in one cause of action, and desertion in another. The trial court granted respondent an interlocutory decree of divorce on both grounds and awarded her $40 per month. Appellant is here attacking the decree as being unsupported by and contrary to the evidence, and has attempted to appeal from the order denying his motion for new trial, which is not an appealable order.

The parties were married July 2, 1921, and separated March 28, 1927, From about July, 1927, to about May, 1928, appellant gave respondent $125 per month for her support. When these payments were discontinued respondent had appellant arrested for failure to provide. He furnished a bond guaranteeing the payment of $50 per month for one year beginning July 3, 1928. Twelve payments were made, with the possible exception of one. The action for divorce was instituted within one year from the time the last fifty-dollar payment was made.

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Appellant complains of the judgment granting the divorce for failure to provide, contending his wilful neglect and failure to provide had not continued for one full year before the institution of this action. We could not agree with this contention, even if appellant had made the payments of $50 per month voluntarily.

The evidence shows that for more than a year prior to the commencement of this action respondent lived in the city of Riverside, California. She was in poor health. This caused her to lose several days each month from her employment which resulted in a loss of wages and bills for medical attention. Her earnings were not sufficient to furnish her with the common necessaries of life and she was forced to borrow money from her friends and call upon their charity for food and shelter. During all of this time appellant had an income out of which he could have provided her sufficient money, which, with her earnings, would have supplied her with the common necessaries of life. The portions of the findings and judgment under attack find support in the evidence.

Appellant further contends that respondent deserted him and that therefore he was not responsible for her support and could not be guilty of failure to provide. Section 94 of the Civil Code defines extreme cruelty as “the wrongful infliction of grievous bodily injury, or grievous mental suffering, upon the other by one party to the marriage”. Section 98 of the same code provides in part: “Departure or absence of one party from the family dwelling-place, caused by cruelty ... is desertion by the other party.” Where a wife leaves the family home because of the wrongful infliction upon her by her husband of grievous mental suffering amounting to extreme cruelty, he is guilty of desertion.