Alves v. Alves

LANDIS, J.,

pro

tem.

Plaintiff sued defendant for a divorce on the grounds of wilful neglect and wilful desertion. Defendant answered, and in a cross-complaint charged plaintiff with and sought a divorce from plaintiff upon the ground of wilful desertion. The court denied the prayer of plaintiff’s complaint and adjudged defendant entitled to a divorce upon the ground of wilful desertion. This appeal is by the plaintiff from the interlocutory decree adjudging defendant entitled to the divorce.

In his cross-complaint respondent charges appellant’s desertion as follows: “That on or about the 25th day of November, 1928, and more than one year last past, the said cross-defendant, disregarding the solemnity of her marriage vows, wilfully and without cause, deserted and abandoned the cross-complainant and ever since has, and continues so to wilfully and without cause abandon said cross-complainant and to live separate and apart from him, without any sufficient cause or any reason, and against his will and without his consent.”

Appellant contends that the said interlocutory decree is not supported by and is contrary to the evidence, and is against law for the following reasons: (1) That there is no evidence showing wilful desertion of defendant, by plaintiff; (2) that there was no corroboration of the claim of desertion, as required by section 130 of the Civil Code.

[262]

The following are the facts as set forth in respondent’s brief, and appear to substantially cover the controlling facts, stated most favorably to respondent, to wit: Defendant testified that he left the then home of plaintiff and defendant at Hayward, because it was costing him too much money to live in town, and he had obtained work in the Bollinger canyon in Contra Costa County for a man named Silveira at the Bettencourt place; that Mrs. Alves stated to him that she would not move out into the country with him anywhere, that she would not leave her family, which consisted of her sons and daughter, who were then living in Hayward. “Q. And will you state to the court the circumstances under which you left? A. Well, the reason I left home, was because I was working up in the Bollinger canyon, for a party by the name of Silveira. Q. Is that on what they call the Bettencourt place? A. That is the Bettencourt place, and I couldn’t—it was costing me too much money to live in town, and I told the wife that we had to move out of town. I didn’t tell her that we were going to move up there. I just mentioned it to her, we had to pull out of town. She told me she wouldn’t leave her family to move out in the country with me no-wheres, so I just simply walked out. I told her I couldn’t make it go in town. . . . We had our family all raised; the youngest girl was getting sixty-five dollars a month, and I couldn’t make ends meet, so I just simply told her, ‘We have to pull out of town.’ ‘Well,’ she said, ‘I wouldn’t leave my family to go with you out in the country nowheres. ’ Of course she had an idea I was offered a house with Mr. Silveira, I was working for. He offered'me a house free of charge to live. I never mentioned this to her, but she had an idea; she got it from the outside that I had a house I wanted to live in, and she told me she wouldn’t leave the family to go out in the country nowhere,' so I just dropped the matter there. . . . Q. When was it your wife told you she wouldn’t live with you in the country anywhere ? A. This was when I was working for this Mr. Silveira. That must have been along about in the month of November sometime. I had just been working there a short while. I had been working there just about a month and then I went home and I handed her thirty-five dollars. I said, ‘Here’s thirty-five dollars towards