Strozynski v. Strozynski

Vanclief, C. Action for a divorce on the ground of extreme cruelty. A divorce was granted on that ground, and one half of the community property (undivided) was awarded to the plaintiff, and the other half to the defendant. The plaintiff brings this appeal from that part of the decree awarding one half of the property to the defendant.

The appeal comes here upon the judgment roll, from which it appears that the parties were married in Germany, February, 1873, and have one child, a daughter, aged fifteen years at the time the action was commenced (September, 1889), the custody and care of whom was given to the plaintiff; that the community property consisted of a lot 57 x 105 feet at corner of Twenty-first and Sanchez streets, San Francisco, and a dwelling-house thereon, the value of the lot and house being about two thousand dollars, and the household and kitchen furniture in the dwelling-house, the value of which does not appear; that the defendant is a shoemaker, whose average earnings are alleged in the complaint to be sixty dollars per month, but denied in the answer to exceed forty dollars per month, and no finding upon this issue. The finding as to the alleged extreme cruelty is in the following language: “The defendant has treated her with extreme cruelty, has been guilty of extreme cruelty to her, has beaten her and called her vile names within the year past.” The defendant was adjudged to pay plaintiff’s costs, taxed at $66.90, and $50 for her attorney’s fees, both to be paid “to Benjamin Healy, plaintiff’s counsel herein, at his office,” for whom the present attorney for appellant was afterwards substituted.

[191]It must be presumed that the foregoing statement comprises all the facts upon which the judgment of the trial court was based, and upon these facts the question to be decided is not merely whether that court abused its discretionary power in dividing the community property, but also whether it erred in the exercise of such power. Ordinarily, the exercise of the discretionary power of the trial court will not be revised by the appellate court except on the ground that such power has been abused; but on appeals from judgments dividing community property in cases of divorce on the ground of adultery or extreme cruelty, the Civil Code has provided a different rule. Section 146 of that code provides: “ 1. If the decree be rendered on the ground of adultery or extreme cruelty, the community property shall be assigned to the respective parties in such proportions as the court, from all the facts of the case and the condition of the parties, may deem just. 2. If the decree be rendered on any other ground than that of adultery or extreme cruelty, the community property shall be equally divided between the parties.”