Mattson v. Mattson

LAWLOR, J.

This action was brought in the superior court of Kern County by the plaintiff against the defendant, her husband, for maintenance and support both

pendente lite

and permanent, counsel fees and costs. After the defendant had interposed a demurrer and a motion to strike out, which were allowed by the court, the plaintiff filed an amended complaint, to which defendant demurred and moved to strike out certain portions thereof. The demurrer to the amended complaint and motion to strike out were denied, whereupon the defendant filed an answer and a cross-complaint in which he asked for a divorce upon the ground of extreme cruelty. The court found in favor of the

plaintiff;

that she and the defendant intermarried on June 8, 1910, and ever since have been and now are husband and wife; that she had a cause of action for divorce on the ground of extreme cruelty, and that she was entitled to the sum of $150 a month for permanent support and maintenance, as well as to counsel fees and costs of suit, it having been found “that this defendant is the owner and is in possession” of property of the total value of about two hundred thousand dollars, and “that his gross monthly income is of the sum of about five hundred dollars.” The defendant was denied a divorce upon the ground of extreme cruelty as alleged in his cross-complaint. Judgment was entered accordingly. Defendant moved for a new trial upon statutory grounds, which motion the court denied. The defendant thereupon appealed from the judgment entered in favor of the plaintiff and against the defendant and from the judgment^ denying the defendant a divorce in said action.

It appears that both the plaintiff and the defendant were more than sixty years of age at the time they intermarried. The evidence as to the controverted issues is in sharp conflict. In support of the allegations of the complaint the plaintiff

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introduced evidence tending to show that the defendant had on numerous occasions struck and beat her and otherwise subjected her to cruel and inhuman treatment, which had. caused her both physical and mental suffering. All this was vigorously denied by the defendant, who supported his cross-complaint with evidence that the plaintiff was of a nagging and quarrelsome disposition and that she had circulated certain false and malicious reports concerning his alleged adulterous relations with his daughter-in-law. Plaintiff in her answer to the cross-complaint and in her testimony denied the allegations of extreme cruelty. The specific facts in so far as they are pertinent will be developed in our discussion of the various points presented for review on this appeal.