McAuliffe v. McAuliffe

RICHARDS, J.

The plaintiff commenced this action against the defendant, her husband, for permanent support and maintenance, alleging extreme cruelty on his part as the basis of the action, and praying for alimony, the custody of the children, and for an award to herself of the community property as described in her complaint. The defendant answered said complaint denying its averments as to his cruelty, and also making certain admissions and denials as to the community property. Later the defendant presented a cross-complaint for divorce, averring cruelty on the part of the plaintiff, and also setting forth certain grounds for an award of the custody of the children of the marriage to himself. To this cross-complaint the plaintiff filed her answer, and upon the issues as thus made up the cause proceeded to trial.

The trial court found against the plaintiff upon her averments as to the defendant’s cruelty, and also found against the defendant upon his averments of the plaintiff’s cruelty as set forth in his cross-complaint; and it accordingly denied both the plaintiff’s prayer for separate maintenance for herself and the defendant’s prayer for a divorce. The trial court made no finding or award upon the subject of the community property of the parties, but as to the three children of the marriage it awarded the care and, custody of the youngest child, a daughter, aged three years, to the plaintiff, and awarded the care and custody of the other two children, a daughter aged seven and a son aged five years, to the defendant. The court also directed the defendant to pay the plaintiff the sum of twenty-five dollars a month for the support of the child awarded to her. From the interlocutory decree entered in accord with these findings the plaintiff prosecutes this appeal.

[1]

The appellant’s first contention is that said judgment must be reversed upon appeal for the reason that the trial court failed to make any finding upon the issue as to the community property.

[354]

This contention has no merit, for the reason that when the trial court found that the plaintiff’s allegations as to the defendant’s cruelty were untrue and that she was not entitled to separate support and maintenance, such finding rendered the issue as to the community property of the parties an immaterial issue in the case, and hence one upon which no finding was required. The case of