Fulton v. Fulton

SHENK, J.

The plaintiff sued the defendant for a divorce on the ground of desertion. The complaint alleged that the community property consisted of furniture of the value of about $100 and shares of stock in the Cities Service Company of about $250 in value. The defendant answered denying the desertion, putting in issue the question of the extent of the community property, and filed a cross-complaint for separate maintenance. The trial court granted an interlocutory decree of divorce to the plaintiff; awarded to the defendant said shares of stock; awarded to her a one-half interest in eighty acres of land in Denair Land and Development Company’s Colony No. 2, and denied to her other relief. She appealed from the interlocutory decree and challenges the findings of the court both on the issue of desertion and on the division of property. The plaintiff moved to dismiss the appeal for noncompliance .with section 2 of rule VIII of the rules of court, and to affirm the judgment under section 3 of rule Y. Thereafter the defendant filed a supplemental brief and the respondent’s brief has been filed. The appeal has been submitted on its merits.

It is unnecessary to recount the evidence at length. On both of the major issues it was conflicting. The trial court resolved the conflict in favor of the plaintiff. It is insisted that the evidence of the plaintiff on the question of desertion is not corroborated. The circumstances of the separation and the continuance thereof as disclosed by the defendant’s testimony may be taken into consideration for purposes of corroboration.

(Percy

v.

Percy,

188 Cal. 765

[728]

[207 Pac. 369];

Jansen

v.

Jansen,

127 Cal. App. 294 [15 Pac. (2d) 777].) It is not disputed that the defendant left the plaintiff’s house in Stanislaus County in September, 1928, and went to Arizona. She returned to this state in 1929, but did not return to her former home. According to the testimony of her sister she lived with the sister in Turlock until the trial of the action in January, 1932. The defendant contended that she was compelled to leave the plaintiff because of the latter’s alleged misconduct toward her. On this question there was contradictory evidence and much dispute, and the trial court’s finding thereon cannot be disturbed.