Cooper v. Cooper
Before: Belcher, Paterson
Synopsis
Divorce — Corroboration of Plaintiff. —Under section 130 of the Civil Code, providing that no divorce shall be granted upon the uncorroborated statement, admission, or testimony of the parties, the testimony of the plaintiff need not be corroborated as to every fact and circumstance, but it is enough if the facts corroborated are sufficient to support the action, and justify the entry of a decree in the plaintiff’s favor.
Id. — Extreme Cruelty—Corroboration as to One Act.—Where the defendant is charged with many acts of extreme cruelty extending through a period of years, the testimony of plaintiff as to a course of extreme cruelty on the part of the defendant, and evidence of his admissions of cruelty to another witness, is sufficiently corroborated by further proof of one of the acts of cruelty alleged in the complaint.
Id.—Former Suit by Defendant — Unfounded Charges of Cruelty. — The institution of a former suit by the defendant against the plaintiff, without any cause, the complaint in which contained extremely cruel and unjust charges, such as no husband should be permitted to make against his wife if untrue, is an act of cruelty, which is sufficiently corroborated by evidence of the complaint containing the charges, and of the voluntary dismissal of the action, and by testimony of a witness as to its cruel effect upon the defendant.
Id. — Dismissal of Soit — Presumption as to Falsity of Charges. — It will be presumed that charges niade in a complaint in an action for divorce were untrue, where the action is voluntarily dismissed by the plaintiff.
Opinion — Belcher
Belcher, C. This is an" action for divorce, on the ground of extreme cruelty. The complaint charged the defendant with many acts of cruelty, extending over a period of several years, and the answer admitted all the averments of the complaint in this regard. After trial the court found that all the averments of the complaint [46]were true; that five thousand dollars would be a fair share of the community property for the plaintiff, and that the property rights of the parties had been amicably settled; that the defendant was better fitted to have the care, custody, and control of the children than the plaintiff, and was better able to support them. A decree was accordingly entered, dissolving the bonds of matrimony between the parties, and awarding to the plaintiff five thousand dollars as her share of the property, and to the defendant the care and custody of the two minor children. Within ten days after the decree was entered, the plaintiff changed her attorney, and moved for a new trial, on the ground that the findings were not justified by the evidence, because they were supported only by her own uncorroborated testimony. The motion was denied, and thereupon she appealed from the judgment and order.
At the trial the plaintiff was a witness, and testified to many acts of cruelty on the part of the defendant, such as repeatedly calling her harsh and opprobrious names, threatening her with violence, seizing her with great force and violence, pinching her arms until they were black and blue, striking her upon the face and body, leaving black and blue marks from his blows, throwing her upon the floor in a rude, angry, and threatening manner, and compelling her to leave the family residence and seek shelter elsewhere, which acts, as she said, were committed without any fault or provocation on her part, and had caused her great physical pain and mental anguish and sor ow She also testified that, about two years before,—and this was alleged in the complaint,—-the defendant commenced an action against her for divorce, on the ground of cruelty, “without any cause therefor, and finally dismissed the same, after having shamed and humiliated me by the charges which he brought against me.” The complaint in the former action was introduced in evidence, and it stated, among other things, that the defendant, plaintiff here, by innu[47]
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