Gorman v. Gorman

GRAY C.

—In this action the defendant was granted a divorce on the ground of the extreme cruelty of plaintiff, and awarded seven twelfths of the community property, including the homestead.

The- plaintiff was awarded the remaining five twelfths. The aggregate value of all said property was found to be $7,748.50. The defendant appeals from that portion of the decree relating to the division of the property, and claims that he should have had more than seven twelfths thereof.

The appeal is presented on the judgment roll, the evidence not being in the record. The findings follow the cross-complaint as to the charge of cruelty, setting forth generally two instances of violent beatings sustained by defendant at the hands of plaintiff, and that in consequence of the last of these outbreaks the defendant was compelled to flee from his home and remain away therefrom as a necessary measure to his personal safety. Whether there was any cause or provocation for this violent conduct on the part of the female spouse does not appear. Nor do the findings enlighten us as to defendant’s ability or inability to support himself by means other than the property in controversy.

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 a 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.

(Eslinger

v.

Eslinger,

47 Cal. 62;

Brown

v.

Brown,.

60 Cal. 579.) It is true that section 148 of the Civil Code makes the action of the trial court in 'this connection subject to-“revision” on appeal, in all particulars, including those matters which are in the discretion of the court below; but on the record before us we are not disposed to interfere with the action of the trial court; for it appears that that court had advantages for reaching a just conclusion in the premises which we do not possess. The parties and witnesses were

[380]