Harman v. Harman

LAWLOR, J.

This is an action for divorce prosecuted by Claude IT. Harman, the husband, plaintiff and appellant, against Jessie Harman, the wife, defendant and respondent. The complaint is based upon several asserted acts of cruelty alleged to have been inflicted upon the appellant by the respondent. Respondent filed an answer and cross-complaint for separate maintenance wherein she sets forth three specifications of cruelty. The case went to trial upon the issues and the trial court, among other things, found that the several allegations of the complaint charging cruelty were true and that the several allegations of the cross-complaint charging cruelty were untrue. Judgment was entered, however, denying relief to either party and awarding counsel fees and costs to the respondent.

The appellant asserts that “The only question for decision on this appeal is: After the trial court finds that plaintiff has established his right to a divorce, can the court arbitrarily deny him a decree?”

In support of a negative reply to this question the appellant cites, among other cases,

Lewis

v.

Lewis,

167 Cal. 732, 733 [52 L. R. A. (N. S.) 675, 141 Pac. 367]. That ease declares that “The court is not authorized to deny a divorce where the evidence of the plaintiff, adequately corroborated, establishes the truth of the allegations of the complaint.

(Kirkpatrick

v.

Kirkpatrick,

152 Cal. 316 [92 Pac. 853] . . . ;

Benkert

v.

Benkert,

32 Cal. 467.) A case having been made out, there is no arbitrary power to grant or refuse the relief. But, in every action for divorce, the court is called upon to determine whether the evidence before it does establish the truth of the charge made in the complaint.]

[697]