Harris v. Harris

BARNARD, P. J. Each of the parties to this action sought a divorce on the ground of extreme cruelty. The court found for the plaintiff and the defendant has appealed from the interlocutory judgment, and from the order denying motion for new trial.

[380]The only point raised is that a finding to the effect that the respondent was a resident of Orange County at the time the action was brought is without support in the evidence.

The parties lived at San Juan Capistrano for about eight years before the action was brought, but appellant contends the respondent had established a residence in San Diego County before the complaint was filed on April 21, 1932. It is argued that it conclusively appears from the evidence that the respondent left the home of the appellant on April 19, 1932, and went to the home of her mother in Oceanside in San Diego County with the intention of . remaining there.

The appellant testified that the date of the separation and the date the respondent left his home was April 19, 1932, although he testified that when she packed and left she told him she had filed a suit for divorce. A neighbor of the parties in San Juan Capistrano testified that the respondent came to his home at 3 o’clock one morning and that she stayed there until she went to Oceanside. The respondent testified that she was living at her home in San Juan Capistrano at the time she filed the complaint in this action and that she went to Oceanside after the complaint herein was filed. This testimony sufficiently supports the finding and the well known rule applies with respect to the conflicting evidence relied upon by the appellant.

If it be assumed that the appellant’s interpretation of the law relating to the establishment of a residence is correct, the same is not controlling in the situation which appears under the court’s finding.

The attempted appeal from the order is dismissed, and the judgment is affirmed.

Marks, J., and Jennings, J., concurred.