Honey v. Honey

JAMES, J.

Defendant has appealed from a decree of the superior court awarding to the plaintiff a divorce and the gross sum of $7,800 for future support.

The parties were married in August, 1919, and separated one year and eight months thereafter. At the time of the marriage defendant was sixty-five years of age and the plaintiff about thirty-one. Both parties had been previously married and plaintiff had two young children whom she brought with her to the home provided by the defendant. In her complaint she charged various acts of cruelty, consisting in' part of words and epithets used toward her by defendant in a continuous course, culminating in a physical attack upon her, which occurred in May of 1921, after which she ceased to live with her husband. There was ample evidence to sustain the charge that the defendant did violently assault the plaintiff on the date last mentioned, and that his attack was without justification, and that she suffered severe bruises and injuries as a result thereof, the effects of which, especially that from an injury to one of her ears, continued down to the time of the trial.

No serious contention is made that the findings of the court on the divorce issue proper are not fully sustained by the evidence. The main argument of appellant is addressed to the point that neither the pleadings, findings, nor evidence justified the trial judge in making the award of the gross sum for the support of the wife. In the complaint

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there were enumerated the various possessions of defendant in real and personal property. The defendant made no denial to those allegations. While the plaintiff for the most part declared in her complaint that the market value of the property was unknown to her, counsel for appellant in their brief admit that there was evidence sufficient to establish a total valuation of $42,375. The trial judge in his findings determined that plaintiff had no means of support and that defendant had “a large amount of property,” and specifically described the various parcels of land, mortgages, and corporate stocks, as the complaint set them forth. Included in this list of property was a mortgage for $7,800 and one for $3,000.

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The supreme court has determined that the allowance which is authorized, to be made upon the granting of a divorce to a wife for the offense of a husband (see. 139, Civ. Code) is something different from “alimony” proper, which term refers to support which the husband is required to render in fulfillment of the marriage obligation during the continuance of the marriage. “Alimony” may be exacted