Benton v. Benton

California Supreme Court Nov 21, 1898 No. Sac. No. 434Published

Before: Chipman

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Holding. The court held that a wife may maintain an action for permanent support without divorce based on desertion resulting from the husband's cruelty, but the court may not award a monthly support amount exceeding the sum specifically demanded in the complaint.

Issues

Whether a complaint alleging facts constituting desertion under Civil Code section 98 is sufficient without using the statutory term 'willful desertion.'
Whether a wife may maintain an action for permanent support without divorce based on cruelty that forced her to leave the family home.
Whether a court may award a monthly support amount in excess of the sum requested in the complaint.
Whether a judgment is invalid if the findings and decree are signed and filed on the same day.

Disposition. modified and affirmed

Quotations verified verbatim against the opinion

“The complaint stated facts which constituted desertion under this section. Having done this, it was not necessary, in such an action as this, to give those acts the statutory designation of willful desertion.”

“The general rule is, that the plaintiff is not entitled to recover more than his complaint demands; and we do not perceive that this case is exempt from its application.”

“The judgment should be so modified as to make the amount of the allowance for support to be one hundred dollars per month, and otherwise to stand affirmed.”

Synopsis

Action by Wife for Permanent Support—Desertion—Cruel Treatment—Pleading.—A complaint in an action by a wife against her husband for permanent support, without divorce, which sets forth acts of extreme cruelty of the husband, and avers that by reason thereof plaintiff was compelled to depart from the family dwelling-place, and that the cruel treatment was such as to render it impossible for plaintiff to continue to live with him, states facts which constitute desertion under section 93 of the Civil Code, and from which desertion followed as a legal conclusión, and need not specifically aver willful desertion of the plaintiff by the defendant; but sufficiently states a cause of action for permanent support and maintenance of the plaintiff, under section 137 of the Civil Code.

Id.—Amount of Allowance—Issuable Fact—Extent of Belief.—In an action for a support without divorce, though the amount of the allowance is largely within the discretion of the court, and it retains subsequent control thereof and may increase or diminish the allowance, yet the amount to be allowed is an issuable fact, and cannot be made in the first instance in excess of the amount asked for in the complaint.

Id.—Date of Findings and Judgment—Presumptions—Appeal.—When the findings and judgment were signed and filed of the same date, it will be presumed that the findings were first filed; and, upon appeal from the judgment, it will be sustained upon the presumption either that findings were first filed, or that they were waived.

CHIPMAN, C. Action to recover permanent support without divorce. The court awarded plaintiff one hundred and fifty dollars per month, one hundred dollars for attorneys’ fees and fifty dollars for costs of action. Defendant appeals on the judgment-roll alone..

[396]The court found that plaintiff and defendant intermarried August 11, 1874, and are now husband and wife; plaintiff has at all times since the marriage “been to defendant a good and dutiful wife, and has ever been regardful of her marital obligations, and has never at any time given defendant any cause or provocation to treat her in any manner other than in kindness”; plaintiff is “without means, is aged and in delicate health; defendant is possessed of property of the value of fifty thousand dollars and upwards,” and is well able to supply and provide plaintiff with a support and maintenance; the court further finds that for more than a year last past defendant has treated plaintiff in a cruel and inhuman manner, setting forth the acts of cruelty, and finds “that defendant’s course of treatment during said time has been such as was calculated to, and did, inflict upon her great mental pain, suffering, and anguish, and she became seriously sick, .... and is now unable, unassisted, to attend to herself or her common wants”; defendant’s “course of treatment was such as made it impossible for her to continue to live in the family dwelling-house, and she was compelled to and did, on or about October 7, 1896, depart from said family dwelling-house, and since said time she has lived away from said dwelling-house and said defendant”; defendant has, during said separation, “refused to supply plaintiff with means for her support and maintenance,” and she “is aged and infirm, and unable to longer endure the treatment of said defendant,” and has not condoned defendant’s offenses. The complaint is verified, and was filed October 29, 1896.-

As conclusions of law, the court found that defendant has been guilty of extreme cruelty toward plaintiff, by which she was compelled to depart from the family dwelling-house as above stated; “that defendant deserted plaintiff on or about the seventh day of October, 1896, and ever since has lived separate and apart from plaintiff,” and that plaintiff is entitled to a decree awarding her permanent support. Judgment was accordingly entered.

1. It is contended that the complaint does not state facts sufficient to warrant the decree, because there is no allegation “that defendant willfully deserted the plaintiff. The words ‘willful desertion, abandon or desert,’ or equivalent words, do

Benton v. Benton

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