White v. White
Before: McFarland, Paterson
Synopsis
Divorce — Desertion — Extreme Cruelty — Adultery — Cross-complaint— Recrimination — Consistency of Findings.—When the husband sues the wife for a divorce upon the alleged grounds of adultery and desertion, and the wife denies the charges, and brings a cross-complaint against the husband for a divorce, alleging adultery, willful neglect, desertion, and extreme cruelty on his part, and the husband pleads the wife’s desertion by way of recrimination, if the court finds against plaintiff as to the alleged adultery and desertion of the wife, and in favor of defendant as to plaintiff’s adultery, neglect, and desertion, and against her as to the averment of cruelty, a finding that defendant left the plaintiff and did not return is not inconsistent with the finding that she did not desert the plaintiff.
Id.—Leaving Husband for Cruelty — Corroborating Evidence.— Though the court cannot grant a divorce on the ground of extreme cruelty of the husband upon the uncorroborated testimony of the wife, it is not under such restraint when considering whether the leaving of the husband by the wife constituted willful desertion, or was justified by his cruel treatment, and upon that issue the court may believe the uncorroborated testimony of the wife as against the testimony of the husband.
Id. —Disposition of Community Property — Findings — Appeal from Judgment — Presumption — Discretion. — When an appeal is taken from a judgment granting a divorce to the wife for the adultery of the husband, and awarding to her the whole of the community property, though the court finds that it cannot determine fully the resources of the husband without an investigation and accounting before a referee, yet if it finds that evidence had been taken on the subject of property, it will he presumed, in favor of the decree, that the court knew the limits within which the community property would lie, and intelligently exercised its discretion in awarding the whole of it to the wife,
Id, — Validity of Antenuptial Contract—Separate Property — Pleading — Evidence — Presumption lipón Appeal.—When upon the issue as to the existence of community property, the husband introduces in evidence an antenuptial contract to the effect that all property acquired after marriage should he the separate property of the husband, which was pleaded in answer to the wife’s cross-complaint, the wife can attack its validity for any cause; and upon appeal from the judgment, where there is no bill of exceptions, it must be presumed that evidence attacking the validity of such contract was not objected to in the court below, and that the issue as to its validity was tried upon its merits.
Id, — Objection upon Appeal for First Time. —It cannot be objected upon appeal, for the first time, that the validity of such contract was determined by the court in the proceeding for divorce, instead of in a separate action.
Opinion — McFarland
McFarland, J. — 1. This is an action for a divorce upon the alleged grounds of adultery and willful desertion, brought by the husband against the wife. The defendant filed an answer and cross-complaint, in which she denied the charges made against her in the complaint, and, alleging adultery, willful neglect, willful desertion, and extreme cruelty against plaintiff, prayed that she be granted a decree of divorce for those causes. The trial court found against plaintiff as to his averments of defendant's adultery and desertion, in favor of defendant as to her averments of plaintiff's adultery, neglect, and desertion, and against her as to her averment of plaintiff's extreme cruelty. Judgment was rendered denying the prayer of the complaint, and decreeing a divorce according to the prayer of the cross-complaint. Plaintiff appeals from the judgment upon the judgment roll alone. (There are also questions about community property, which will be noticed hereafter.)
As there is no evidence before us, that part of the judgment which decrees a divorce must be affirmed, unless its invalidity appears upon the face of the judgment roll. The point which appellant makes against [221]the validity of the decree of divorce, stated briefly, is this: Appellant, in his answer to respondent’s cross-complaint, pleaded her desertion by way of recrimination. The court found that respondent did leave the appellant on October 26, 1884, and did not return; and as the court also found that appellant was not guilty of extreme cruelty, therefore respondent must have been guilty of desertion. But as to respondent’s averment of appellant’s cruelty, the court finds as follows: “ There is testimony tending to prove the allegations of the extreme cruelty contained in the fourth cross-complaint of the defendant, but as to the specific acts therein alleged they are mainly sustained by the evidence (testimony) of the defendant herself, which is contradicted by the plaintiff, and the corroborating circumstances are insufficient to establish the said specific acts, or the said charge of extreme cruelty.” The court was here dealing with the respondent’s affirmative averment of extreme cruelty as a distinct cause for granting her a divorce, and was acting under the restraint of section 130 of the Civil Code, which provides that “ no divorce can be granted upon the default of the defendant, or upon the uncorroborated statement, admission, or testimony of the parties.” But' the court was not under that restraint when considering appellant’s affirmative averment of respondent’s desertion as a distinct cause of divorce on his part, she claiming that his treatment justified her in leaving. And if upon that issue the only evidence was the testimony of the parties', there is no rule which prevented the court from believing the one, or disbelieving the other. We therefore see no reason for disturbing the judgment, so far as it decrees a divorce.
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