Nave v. Nave

BURNETT, J.

Plaintiff was granted a divorce without alimony from defendant on the ground of extreme cruelty. The judgment divides the community property, consisting of a homestead valued at about one thousand five hundred dollars, but mortgaged for five hundred dollars, the house and tools, furniture, and one cow, equally between the parties, and awarded the custody of Samuel Oliver Nave, aged three, to defendant, and Rose May Nave, aged one, to plaintiff. The plaintiff appeals from that part of the judgment refusing alimony and awarding half of the community property and the custody of the boy to. defendant.

The law regarding the disposition of community property on divorce is that: “If the decree be rendered on the ground of adultery, or extreme cruelty, the community property shall be assigned to the respective parties in such proportions as the court, from all the facts of the case, and the condition of the parties, may deem just.” But “if the decree be rendered on any other ground than that of adultery or extreme cruelty, the community property shall be equally divided between the parties.” (Civ. Code, sec. 146.) And in section 148 it is

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declared that the disposition is subject to revision on appeal in all particulars, “including those which are stated to be in the discretion of the court.”

“Where the divorce is granted on the ground of adultery or extreme cruelty, section 146 of the Civil Code leaves the disposition of the community property, in the first instance, to the discretion of the trial court, with, perhaps, the qualification inferred from the reading of the entire section, that, as a general rule, more than one-half of such property must be decreed to the innocent spouse in such a case.”

(Gorman

v.

Gorman,

134 Cal. 378, [66 Pac. 313];

Knapp

v.

Knapp,

23 Cal. App. 10, [136 Pac. 719].) In the Gorman case seven-twelfths of the property was awarded to the innocent husband. In